BILL ANALYSIS Ó AB 635 Page 1 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 AB 635 Page 2 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. AB 635 Page 3 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 AB 635 Page 4 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 AB 635 Page 5 (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. AB 635 Page 6 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 AB 635 Page 7 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. AB 635 Page 8 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 AB 635 Page 9 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 AB 635 Page 10 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