BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 635


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          Date of Hearing:  April 14, 2015


                            ASSEMBLY COMMITTEE ON HEALTH


                                  Rob Bonta, Chair


          AB 635  
          (Toni G. Atkins) - As Introduced February 24, 2015


          SUBJECT:  Medical interpretation services.


          SUMMARY:  Establishes the Medi-Cal Medical Interpretation  
          services program at the Department of Health Care Services  
          (DHCS) to provide and reimburse for certified medical  
          interpretation (CMI) services to limited English proficient  
          (LEP) Medi-Cal enrollees.  Specifically, this bill:


          1)Requires DHCS to seek federal funding to establish a program  
            to provide CMI services to Medi-Cal beneficiaries who are  
            limited in their English proficiency.

          2)Requires the program to be available in both Medi-Cal  
            fee-for-service (FFS) and Medi-Cal managed care.



          3)Authorizes Medi-Cal providers and any providers contracting  
            with Medi-Cal managed care organizations (MCOs) to use the  
            programs.



          4)Requires all contracts between MCOs and their subcontractors  








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            shall include provisions describing access to CMI services  
            under the program.



          5)Requires DHCS to create a community advisory committee  
            consisting of stakeholders and health care providers to advise  
            DHCS on the program's implementation.



          6)Provides that the program does not apply to sign language  
            interpretive services.


          EXISTING FEDERAL LAW:


          1)Prohibits, 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.





          2)Requires federal agencies to ensure meaningful access to  
            services for LEP persons through regulations.


          3)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) known as the Healthy Families Program (HFP) in  
            California.









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          EXISTING STATE LAW:


          1)Prohibits discrimination based on ancestry, age, color,  
            disability, genetic information, gender, gender identity, and  
            gender expression, marital status, medical condition, national  
            origin (includes language use restrictions), race, religion,  
            sex, sexual orientation in any program or activity operated or  
            administered by a state agency. 
          2)Requires state and local agencies to provide services to a  
            substantial number of non-English speaking people to provide  
            interpretation services.

          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 commercial health plans to assess their members  
            language preference and provide interpretation and translation  
            services in threshold languages.


          5)Establishes the Medi-Cal program in state law, administered by  
            DHCS, under which qualified low-income individuals receive  
            health care services.


          FISCAL EFFECT:  This bill has not been analyzed by a fiscal  
          committee.


          COMMENTS:


          1)PURPOSE OF THIS BILL.  According to the author, California has  
            an opportunity to draw down enhanced federal funding to  
            develop a more comprehensive language assistance program for  








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            LEP beneficiaries.  These critical services will help ensure  
            better health outcomes for individuals by reducing language  
            barriers that could lead to lack of or inappropriate  
            preventive and primary care.  More than 40% of Californians  
            speak a language other than English at home and almost 7  
            million Californians are estimated to speak English "less than  
            very well."  As a result, language assistance in medical  
            settings is often provided by untrained staff or, more  
            frequently, in an informal manner by family members or  
            friends.



          The author notes that research finds language barriers can  
            contribute to inadequate patient evaluation and diagnosis;  
            lack of appropriate and/or timely treatment; and/or other  
            medical errors that can jeopardize patient safety and lead to  
            unnecessary procedures and cost.  The author concludes, as a  
            recent University of California, Los Angeles report indicates,  
            despite state regulations, health plan enrollees who are LEP  
            still face communication barriers.
          2)BACKGROUND.  In 2006 various stakeholders created a task force  
            charged with developing recommendations for a system to  
            provide language services for Medi-Cal enrollees, which  
            evolved into the Medi-Cal Language Access Services (MCLAS)  
            Taskforce.  The ultimate vision of this effort was to design a  
            system that could accommodate large numbers of persons whose  
            primary language was other than English and to generate  
            additional federal financial participation (FFP) for  
            reimbursement of State expenditures.



          According to the 2009 MCLAS Report, "Providing Language Services  
            for Limited English Proficient Patients in California," more  
            than 25 languages are recorded as Medi-Cal beneficiaries'  
            preferred language.  Almost half (45.2%) speak a language  
            other than English.  The top five non-English languages in  
            Medi-Cal are Spanish (36.9%), Vietnamese (1.9%), Cantonese  








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            (1.2%), Armenian (0.9%), and Russian (0.6%). 

          The MCLAS Report included a recommendation to DHCS described as  
            a hybrid Brokerage/Direct Provider Reimbursement model to  
            finance the provision of language services within the Medi-Cal  
            FFS program.  This recommendation was based on a review of  
            four reimbursement models that 13 states and the District of  
            Columbia utilize:  a) telephonic interpreter reimbursement; b)  
            direct interpreter reimbursement model; c) direct provider  
            reimbursement model; and, d) language services agency/broker  
            reimbursement model.  The MCLAS Taskforce analyzed the  
            positive aspects and the challenges of each model generally  
            and also specifically in light of California's Medi-Cal  
            program.

          The MCLAS Taskforce proposed a two-year pilot project in 10  
            counties to sufficiently test the model.  However, at the time  
            of the MCLAS Taskforce analysis, more than half of the  
            Medi-Cal population was receiving benefits through FFS.  Since  
            then, DHCS has implemented mandatory enrollment of seniors and  
            people with disabilities and is in the process of transferring  
            low-income children from HFP to MCO.  Currently less than 35%  
            of Medi-Cal enrollees receive services on a FFS basis.   
            Additional initiatives may result in an even smaller FFS  
            population.  The approach taken by this bill does not limit  
            the model and does include providers who contract with  
            Medi-Cal MCPs as well as those who provide services on a FFS  
            basis.
          3)FEDERAL POLICY GUIDANCE.  Each federal department has a civil  
            rights office that is charged with ensuring that its programs  
            are free of discrimination.  The responsibilities of the  
            federal Department of Health and Human Services (HHS) Office  
            for Civil Rights (OCR) 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.









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          The OCR has the authority to investigate complaints related to  
            linguistic barriers, to initiate its own reviews, and to  
            withhold federal funds for noncompliance.  The Centers for  
            Medicare and Medicaid Services (CMS) issued a State Medicaid  
            Director letter on August 31, 2000, that informed states of  
            the policy guidance the OCR had issued on the prohibition  
            against national origin discrimination as it affects persons  
            with LEP, pursuant to Title VI the Civil Rights Act.  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.  CMS states there is no "one size fits all" solution  
            for Civil Rights Act 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. 

          4)ENHANCED FEDERAL MATCHING FUNDS.  The Children's Health  
            Insurance Program Reauthorization Act (CHIPRA) of 2009  
            contains provisions that affect both CHIP and Medicaid.  In  
            July 2010, CMS provided guidance on the implementation of the  
            provisions of CHIPRA relating to increased administrative  
            funding for translation or interpretation services provided  
            under CHIP and Medicaid.  For Medicaid, increased federal  
            funding for translation and interpretation services available  
            under CHIPRA is limited to children and family members of  
            those children.  For CHIP, increased federal funding for  
            translation and interpretation services is not just limited to  








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            children, and 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 in California  
            is typically 50% for Medi-Cal and 65% for the CHIP-funded  
            beneficiaries enrolled in Medi-Cal.  CHIPRA is in the process  
            of being reauthorized at the federal level.  As such it is too  
            early to say what has or has not changed but the efforts to  
            date appear to eliminate the enhanced FMAP for translation  
            services, and return to the regular FMAP for both Medi-Cal and  
            CHIP-funded Medi-Cal.
          5)SUPPORT.  Supporters, including the Western Center on Law and  
            Poverty, Health Access California and the American Federation  
            of State, County and Municipal Employees support this bill  
            citing the critical need for providing and reimbursing trained  
            medical interpreters.  They state that California's population  
            is incredibly diverse and that almost 44% of Californians  
            speak another language at home, and the Medi-Cal population is  
            even more diverse.  They argue that when these Californians go  
            to their doctor it is imperative that they can effectively  
            communicate with their doctor.  They conclude it is critical  
            to have a system, particularly for fee-for-service Medi-Cal of  
            medical interpreters.  The California Pan-Ethnic Health  
            Network supports this bill because it will assist the state in  
            meeting their legal obligations under Title VI of the Civil  
            Rights Act of 1964.  The support sees this bill as improving  
            the quality of health care services for California's diverse  
            populations.  They also argue the bill will help lower health  
            care costs by ensuring the state is able to access federal  
            funds to help pay for the language assistance services it is  
            already required to provide, a view shared by other supporters  
            such as the Homecare Providers Union.








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          6)PREVIOUS LEGISLATION.


          
             a)   AB 2325 (John A. Pérez) of 2014 would have establishes  
               the Medi-Cal Patient Centered Communication (CommuniCal)  
               program at DHCS to provide and reimburse for certified  
               medical interpretation services to LEP Medi-Cal enrollees.   
               Would have established a certification process and registry  
               of CommuniCal certified medical interpreters (CCMI) at DHCS  
               and grant CCMI collective bargaining rights with the state.  
                AB 2325 was vetoed by Governor Brown who cited the  
               increased costs to the Medi-Cal program and the extent of  
               the collective bargaining rights afford to interpreters  
               under the program.

             b)   AB 1263 (John A. Pérez) of 2013 was substantially  
               similar to AB 2325 but directed the State Personnel Board  
               to administer the CCMI registry.  AB 1263 was vetoed by  
               Governor Brown who cited his concerns about adding more  
               responsibilities to DHCS.



             c)   AB 2392 (John A. Pérez) of 2012, was substantially  
               similar to AB 1235.  AB 2392 passed both the Assembly and  
               Senate but was never taken up for concurrence in Senate  
               amendments and died on the Assembly inactive file.



             d)   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  








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               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.


             e)   SB 1405 (Soto) of 2006 would have required the  
               Department of Health Services (now 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.





          REGISTERED SUPPORT / OPPOSITION:




          Support


          AARP


          American Federation of State, County and Municipal Employees,  
          AFL-CIO


          California Academy of Family Physicians


          California Pan-Ethnic Health Network










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          California Workers' Compensation Interpreter's Association


          Health Access California


          United Domestic Workers of America, AFSCME Local 3930, AFL-CIO


          Western Center on Law and Poverty




          Opposition


          None on file.




          Analysis Prepared by:Roger Dunstan / HEALTH / (916) 319-2097