BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 635 --------------------------------------------------------------- |AUTHOR: |Atkins | |---------------+-----------------------------------------------| |VERSION: |February 24, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |June 24, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Scott Bain | --------------------------------------------------------------- SUBJECT : Medical interpretation services. SUMMARY : Requires the Department of Health Care Services to seek federal funding to establish a program to provide and reimburse for certified medical interpretation services for Medi-Cal beneficiaries who are limited English proficient. Requires the program to offer medical interpreter services to Medi-Cal providers serving beneficiaries on either a fee-for-service or managed care basis. Existing state law: 1)Establishes the Medi-Cal program, which is administered by the Department of Health Care Services (DHCS), under which qualified low-income individuals receive health care services. 2)Requires commercial health plans to assess their members' language preference and provide interpretation and translation services in threshold languages. 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 state and local agencies providing services to a substantial number of non-English speaking people to provide bilingual services. AB 635 (Atkins) Page 2 of ? Existing federal law: 1)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 was previously known as the Healthy Families Program in California; these children are now enrolled in Medi-Cal). 2)Prohibits, under Title VI of the Civil Rights Act of 1964, 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. This bill: 1)Requires DHCS to seek federal funding to establish a program to provide and reimburse for certified medical interpretation services to Medi-Cal beneficiaries who are limited English proficient. 2)Requires the program to offer medical interpreter services to Medi-Cal providers serving beneficiaries on either a fee-for-service or managed care basis. 3)Permits a health care provider or entity entering into a Medi-Cal provider agreement or Medi-Cal managed care contract with the state, including Medi-Cal managed care organizations (MMCOs) and their subcontracting plans, and fee-for-service providers, to utilize the program to provide medical interpreter services to Medi-Cal beneficiaries. 4)Requires all contracts between MMCOs and their subcontractors, including health providers and other health plans, to include provisions describing access to medical interpreter services under the program. 5)Requires DHCS to pursue all available sources of federal funding to establish and administer the program and to seek federal approvals necessary to implement this article. AB 635 (Atkins) Page 3 of ? 6)Requires DHCS to create a community advisory committee, consisting of stakeholders and health care providers, to advise on the implementation of this bill. 7)Exempts from this bill sign language interpretation services. FISCAL EFFECT : According to the Assembly Appropriations Committee: 1)One-time administrative costs in the range of $1 million (General Fund (GF)/federal) to DHCS to seek federal approvals, create system protocols, develop an information technology infrastructure, design communications and guidance, promulgate regulations, and other initial program development activities. 2)Assuming 2 million LEP individuals receive one additional office visit annually with interpretive services provided through this program at a cost of $20 per visit, additional costs would be about $40 million annually. 3)Medi-Cal costs would be at a 50% GF, 50% federal funds matching rate, except for costs for individuals at higher matching rates. 4)Improved access to high-quality interpretive services is likely to improve access to care and increase overall medical costs to the Medi-Cal program for LEP beneficiaries. It would also likely result in some offsetting cost savings associated with the provision of higher-quality care and fewer medical errors. The magnitude of savings as compared to costs is unknown, but evidence suggests that, on balance, the Medi-Cal program would experience increased medical costs if centralized, high-quality interpretive services were available. PRIOR VOTES : ----------------------------------------------------------------- |Assembly Floor: |72 - 2 | AB 635 (Atkins) Page 4 of ? |------------------------------------+----------------------------| |Assembly Appropriations Committee: |13 - 1 | |------------------------------------+----------------------------| |Assembly Health Committee: |16 - 0 | | | | ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, more than 40% of Californians speak a language other than English at home. Almost seven million Californians are estimated to speak English "less than very well." Research finds that language barriers can contribute to inadequate patient evaluation and diagnosis, lack of appropriate and/or timely treatment, or other medical errors that can jeopardize patient safety and lead to unnecessary procedures and costs. Today language assistance in medical settings is provided by trained or untrained staff, or in an informal manner by family members or friends. California has an opportunity to develop a more comprehensive language assistance program by seeking additional federal funding for medical interpreter services in the Medi-Cal program. 2)Enhanced federal matching funds for translation and interpretation services. The Children's Health Insurance Program Reauthorization Act (CHIPRA), Public Law 111-3, enacted on February 4, 2009, contains provisions that affect both CHIP and Medicaid. In July 2010, the Centers for Medicare and Medicaid Services (CMS) provided guidance on the implementation of Section 201(b) of CHIPRA, which provides increased administrative funding for translation or interpretation services provided under CHIP and Medicaid. Under Medicaid, increased federal funding for translation and interpretation services available under CHIPRA is limited to children and family members of those children. Under CHIP, increased federal funding for translation and interpretation services is not just limited to 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 is typically 50% in California for Medi-Cal and 65% for the Healthy AB 635 (Atkins) Page 5 of ? Families Program). CHIPRA provides increased federal matching funding for translation or interpretation services provided to eligible individuals for whom English is not their primary language. The increased federal match for translation or interpretation services differs for Medicaid and CHIP. For Medicaid, the increased match is 75% of allowable expenditures. For CHIP, the increased match is 75%, or the state's enhanced FMAP plus 5%, whichever is higher (in California, it would be 75%). However, the increased federal match is only available for eligible expenditures claimed for administration of the Medicaid or CHIP plan, and not expenditures claimed for benefits (which are matched at the state's usual FMAP rate of 50% for Medi-Cal and 65% for CHIP). In addition, the expenditures that qualify for the increased match under CHIP are subject to the 10% cap on administrative expenditures. 3)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, non-profits, 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. 4)OCR policy guidance. 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 LEP, pursuant to Title VI of the Civil Rights Act of 1964. 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 AB 635 (Atkins) Page 6 of ? 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 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)Current DHCS health plan contractual requirements. DHCS' model contract with Medi-Cal managed care plans requires plans to ensure equal access to health care services for its members without regards to a member's proficiency in the English language. This includes ensuring that all monolingual, non-English-speaking or LEP Medi-Cal beneficiaries receive 24-hour oral interpreter services at all key points of contact. Key points of contact include medical care settings (telephone, advice and urgent care transactions, and outpatient encounters with health care providers including pharmacists) and non-medical care setting (member services, orientations, and appointment scheduling). A June 2015 Bureau of State Audits audit entitled "Department of Health Care Services: Improved Monitoring of Medi-Cal Managed Care Health Plans Is Necessary to Better Ensure Access to Care" found DHCS did not review plan's language assistance programs. 6)Data on language in California. According to the US Census Bureau 2010 American Community Survey, 43.7% of Californians over the age of 5 speak a language other than English, and 19.9% of Californians over the age of 5 speak English "less than very well." According to the California Health Interview Survey, of the 3.5 million adults in the Medi-Cal program, about 281,000 (8.1%) had difficulty understanding their doctor and/or needed another person to help them understand their AB 635 (Atkins) Page 7 of ? doctor. Among the parents of 1.8 million children under age 12 in the Medi-Cal program, about 135,000 (7.4%) had difficulty understanding the child's doctor and/or needed another person's help to understand the doctor. 7)Prior legislation. AB 2325 (John A. Pérez, 2014) would have established the Medi-Cal Patient Centered Communication (CommuniCal) program at DHCS to provide and reimburse for certified medical interpretation services to LEP Medi-Cal enrollees. AB 23235 would have established a certification process and registry of CommuniCal certified medical interpreters (CCMI) at DHCS and granted CCMI collective bargaining rights. 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 afforded to interpreters under the program. AB 1263 (Pérez, 2013) was similar to AB 2325. AB 1263 was vetoed by Governor Brown. In his veto message, Governor Brown stated California has embarked on an unprecedented expansion to add more than a million people to our Medi-Cal program. Given the challenges and the many unknowns the state faces in this endeavor, I don't believe it would be wise to introduce yet another complex element. AB 2392 (Pérez, 2012), would have required DHCS to establish the CommuniCal program to provide and reimburse for certified medical interpretation services provided to Medi-Cal beneficiaries who are LEP. AB 2392 would have established the State Personnel Board (SPB) as the certifying body for the CommuniCal certified medical interpreter (CCMI), and would have required CommuniCal to be administered by a patient-centered communication broker that is a third-party administrator. AB 2392 was moved to the Assembly inactive file on concurrence. SB 442 (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. SB 442 would have required hospitals' policies on language assistance services to include criteria on AB 635 (Atkins) Page 8 of ? proficiency similar to those that apply to health plans. SB 442 was vetoed by the Governor. SB 1405 (Soto, 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. AB 800 (Yee, Chapter 313, Statutes of 2005), requires all health facilities (hospitals, skilled nursing facilities, intermediate care facilities, 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), requires the Department of Managed Health Care and the California Department of Insurance to adopt regulations to ensure enrollees have access to language assistance in obtaining health care services. 8)Support. The California Pan-Ethnic Health Network writes that California's population is one of the most diverse in the country with over 100 different languages spoken and an estimated six to seven million Californians LEP. Barriers to communication in the health care setting can result in increased risk of misdiagnoses and misunderstandings, resulting in lower quality care and reduced adherence to medication. The American Federation of State, County and Municipal Employees argue that communication is critical to quality of care and cultural competency in our state's Medicaid program. With the expansion of Medi-Cal and the exchange market under the Affordable Care Act, the state has a clear opportunity to create an interpreters program that will allow patients and providers to clearly communicate with each other. SUPPORT AND OPPOSITION : Support: AARP American Cancer Society Cancer Action Network American Federation of State, County and Municipal Employees, AFL-CIO California Academy of Family Physicians California Academy of Physician Assistants AB 635 (Atkins) Page 9 of ? California Black Health Network California Chapter of the National Association of Social Workers California Immigrant Policy Center California Pan-Ethnic Health Network California Workers' Compensation Interpreter's Association Community Clinic Association of Los Angeles County County Welfare Directors Association of California Health Access Planned Parenthood Affiliates of California United Domestic Workers of America, AFSCME Local 3930, AFL-CIO Western Center on Law and Poverty Oppose: None received -- END --