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