BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 635    
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          |AUTHOR:        |Atkins                                         |
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          |VERSION:       |February 24, 2015                              |
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          |HEARING DATE:  |June 24, 2015  |               |               |
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          |CONSULTANT:    |Scott Bain                                     |
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           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.








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          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  :  
          
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          |Assembly Floor:                     |72 - 2                      |








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          |Assembly Appropriations Committee:  |13 - 1                      |
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          |Assembly Health Committee:          |16 - 0                      |
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          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  








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            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


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