BILL ANALYSIS Ó
AB 941
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON HEALTH
Rob Bonta, Chair
AB 941
(Wood) - As Introduced February 26, 2015
SUBJECT: Clinics: licensure and regulation: exemption.
SUMMARY: Exempts clinics operated by a tribe or tribal
organization, regardless of location, from obtaining a license
from the Department of Public Health (DPH), and requires, to
qualify for the exemption, the clinic operate under a contract
with the United States pursuant to the Indian Self Determination
and Education Assistance Act (ISDEAA).
EXISTING STATE LAW:
1)Requires clinics to be licensed by DPH. Provides for
exemptions from these licensing requirements for certain types
of clinics, including federally operated clinics, local
government primary care clinics, clinics affiliated with an
institution of higher learning, clinics conducted as
outpatient departments of hospitals, and community or free
clinics.
2)Exempts from the clinic licensing requirement, clinics
operated by a federally recognized Indian tribe or tribal
organization on land recognized as tribal land by the federal
government.
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3)Authorizes DPH to take various types of enforcement actions
against a primary care clinic that has violated state law or
regulation, including imposing fines, sanctions, civil or
criminal penalties, and suspension or revocation of the
clinic's license.
4)Requires a provider to apply to the Department of Health Care
Services (DHCS) to obtain approval for participating in the
Medi-Cal program and to apply and obtain DHCS approval for
enrollment. Specifies extensive application requirements.
5)Requires clinics to meet specified standards and be approved
for operation by DPH prior to obtaining a Medi-Cal provider
number or providing services.
6)Creates within DPH the Indian Health Program whose mission is
to improve the health status of American Indians living in
urban, rural, and reservation or rancheria communities in
California.
7)Specifies that nothing prohibits DPH from adopting regulations
that utilize clinic licensing standards as eligibility
criteria for participation in programs funded wholly or
partially under Title XVII or XIX of the federal Social
Security Act (i.e., Medicaid).
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8)Allows a person who is licensed as a health care practitioner
in any other state and is employed by a tribal health program
to be exempt from any licensing requirement with respect to
acts authorized under the person's license where the tribal
health program performs the services described in the contract
or compact of the tribal health program under the ISDEAA.
EXISTING FEDERAL LAW:
1)Allows the federal government to contract with federally
recognized tribes for health services within the California
contract health service delivery area. Excludes from the
California area the Counties of Alameda, Contra Costa, Los
Angeles, Marin, Orange, Sacramento, San Francisco, San Mateo,
Santa Clara, Kern, Merced, Monterey, Napa, San Benito, San
Joaquin, San Luis Obispo, Santa Cruz, Solano, Stanislaus, and
Ventura.
2)Includes under The Patient Protection and Affordable Care Act
(ACA) provisions for health care services provided to Indians
through Tribal Health Programs. The ACA indicates that
professionals who are employed by tribal health programs shall
be considered exempt from the licensing requirements of the
state in which the tribal health program performs services
under the ISDEAA.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
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1)PURPOSE OF THIS BILL. According to the author, the majority
of California tribal health clinics (tribal clinics) are
located in rural areas of the state and oftentimes, it is
challenging to meet unmet needs when providing healthcare
services over large geographic areas. Tribal clinics cannot
always establish new clinics on Indian land, as oftentimes,
the Indian land in question is not available in an area where
many tribal clinic patients may reside. This results in
opening new tribal clinics on non-Indian land in order to
provide adequate access of care to patients.
The author notes, tribal clinics may only place new sites within
the federal statutorily defined service areas based on the
population of the tribal communities they serve. The federal,
tribal, and state standards requirements have to be met in
order to create a new tribal clinic; and these standards are
comprehensive and coherent.
When abiding by the federal, tribal, and state standards, the
administrative process becomes very duplicative when applying
for a license to operate a tribal clinic on non-Indian land.
The author concludes, this bill will streamline the state
clinic licensing exemptions and exempt tribal clinics on
non-Indian land from DPH's state facility license.
2)BACKGROUND. There are approximately 1,000 primary care
clinics currently licensed in California. In order to obtain
a license, a primary care clinic must submit an application
and fee to DPH and pass an initial licensure survey conducted
by DPH. Upon receipt of a completed application for a clinic
license, DPH has up to 100 days to either grant or deny the
license. Existing law requires DPH to issue a provisional
license, good for six months from the date of issuance, to a
clinic that has not been previously licensed. DPH is required
to inspect the clinic within 30 days prior to the termination
of the provisional license, and, if the clinic meets all
licensure requirements, issue a regular license. Clinics that
do not meet the requirements for licensure, but make progress
toward meeting the requirements, may have their provisional
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license renewed by DPH for another six months.
Clinics exempt from state licensing do have to apply to DHCS if
they want to enroll as a Medi-Cal provider. DHCS has a
specific application process for exempt clinics, including
obtaining a certification by DPH or a specified nonprofit
entity that inspects the clinics and ensures they meet minimum
requirements.
3)TRIBAL HEALTH SERVICES. The federal government has a major
role in providing health care services to American Indians.
The federal government's obligation began with the terms of
many treaties where the federal government promised health
care as one of the conditions of these treaties. Over time
the obligation has endured, but the means for carrying it out
has undergone significant change. A landmark change occurred
when the Snyder Act was passed in 1921 which better defined
the federal responsibility, consolidated various programs, and
assigned responsibility to the Bureau of Indian Affairs.
Their responsibilities were later transferred to the
forerunner of today's Department of Health and Human Services
and administered by the newly created Indian Health Service
(IHS). Another significant change came with the enactment in
1975 of the Indian Self-Determination and Education Act
(Public Law 93-638). Enactment of this law marked the
beginning of a period when the tribes began taking more
responsibility and a direct role in providing health services.
Health services may still be provided by the IHS but as an
alternative they can be provided by a contracting tribe, a
program which has grown markedly over the years.
The IHS provides health services to members of federally
recognized tribes and other eligible Indians, as specified.
The health services have been described as universal
eligibility but have limited availability, a further factor in
the tribes taking more responsibility for the direct provision
of services. The IHS oversees health programs over portions
of the state. By federal law, the area is limited to the 38
counties with American Indian trust lands, generally meaning a
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reservation or rancheria. Within the included counties there
is a service population of approximately 130,000 eligible
American Indians. The IHS divides their service area in
California into smaller administrative units called services
units. These services units have responsibility for planning,
managing, and evaluating the health programs in its
jurisdiction. They are focused on a specific geographic area
and are usually centered on a single federal reservation. It
is within these services units that a tribe or consortium of
tribes can operate clinics under contract with the federal
government.
Although the clinics are established to provide services to
specified American Indians they are open to all. The
proportion of non-Indians using these clinics varies
dramatically. In some smaller rural areas without many health
care facilities, the proportion of non-Indians can be quite
significant accounting for about half the patients seen. In
other clinics, Indians comprise the overwhelming majority.
According to the California Rural Indian Health Board, of the 30
existing tribal health clinics in the state, this bill will
apply to approximately five. All IHS-funded health care is
tied to American Indian and Alaska Native user populations.
In California there are eight urban Indian clinics in cities.
The exemption proposed by this bill would not apply to them,
and their funding and federal statutory authority is distinct
and separate from the funding and authority for tribal health
programs.
4)SUPPORT. The California Rural Indian Health Board, Inc.
(CRIHB), numerous Tribes and Rancherias, and the California
Pan-Ethnic Health Network support this bill stating it will
create a much needed single standard for clinic licensure for
federal Tribal Health Programs (THP). Supporter's note,
regardless of where a THP is located, it is required to adhere
to all federal IHS operating requirements in order to maintain
its status as a federal contractor. Supporters also contend
the THPs' governing bodies have established compliance
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services that detect, prevent, and appropriately respond to
violations of law or company policy, and many THPs are
accredited by the Accreditation Association for Ambulatory
Health Care or the Joint Commission on Accreditation of Health
Care Organizations.
The California Primary Care Association (CPCA) supports this
bill noting that American Indians face unique health
challenges, from having the highest rates of asthma, diabetes,
and heart disease among any ethnic group to experiencing
persistent barriers to health care and insurance. CPCA also
states American Indian peoples also suffer from a scarcity of
resources and data on a broad range of health topics, from
obesity to cancer survival to suicide and mental health
issues. They also note that California has the largest
population of elderly American Indians of any state, which
will likely increase the need for culturally sensitive
healthcare services, like those provided by tribal health
clinics.
5)OPPOSITION. The California Nurses Association (CNA) is
opposed to this bill because it will exclude Tribal Health
Clinics from California licensing and safety provisions
outside of federally designated tribal lands. CNA notes,
without licensing, clinics would not have to comply with state
building or state professional standards which assure minimal
protections for employees working in clinics who may or may
not be tribal members. CNA states while the Social Security
Act generally prohibits payment to any Federal agency, an
exception is provided for IHS/Tribally owned and operated
facilities, and the enactment of Medicare, Medicaid, and State
Children's Health Insurance Program Benefits Improvement and
Protection Act expanded payment for Medicare services provided
in IHS/tribally owned and operated facilities. In short, CNA
contends, tribal clinics are able to bill for Medicare
reimbursement just as any other clinic in California, and
exemptions from state law exist because of federally
recognized sovereignty in which agreements with respect to
health services provided on federally designated tribal lands,
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or reservations are managed by IHS. CNA concludes the
exemption proposed by this bill does not assure any state
minimum standards of care for tribal clinics operating within
California but not on tribal land.
6)RELATED LEGISLATION. SB 396 (Hill) allows ambulatory surgical
clinics which are Medicare certified to have the option of
being licensed by DPH and also clarifies that they are deemed
to be licensed if they are already Medicare certified. SB 396
passed the Senate Business & Professions Committee on April
20, 2015 with a vote of 9-0 and is pending hearing in the
Senate Health Committee.
7)PREVIOUS LEGISLATION.
a) AB 2264 (Levine) of 2014, was substantially similar to
this bill. AB 2264 was amended to address entirely
different subject matter.
b) AB 1896 (Chesbro), Chapter 119, Statutes of 2012, aligns
California law with provisions of federal law which exempt
a health care practitioner licensed in any state who
practices as part of the tribal health program from the
licensure requirements of the state in which the tribal
health program is located.
8)POLICY COMMENT. This bill could result in clinics in very
similar situations being subject to different regulations. A
clinic operated by a recognized tribe and located off a
reservation currently can hire health care providers who are
not licensed in California, and should this bill pass, would
not have to obtain a license from DPH. Another clinic
operated by another entity and not on a reservation would have
to hire health care providers licensed in California and
obtain a license, creating a potentially inequitable situation
and leading to possible confusion for consumers. One way to
address this situation would be to repeal the current
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exemption allowing tribal clinics to hire providers without a
California license.
REGISTERED SUPPORT / OPPOSITION:
Support
Big Valley Band of Pomo Indians
Blue Lake Rancheria
California Pan-Ethnic Health Network
California Primary Care Association
California Rural Indian Health Board, Inc.
Chapa-De Indian Health Program, Inc.
Cloverdale Rancheria
Greenville Rancheria
Karuk Tribe
Kashia Band of Pomo Indians
Latino Coalition for a Healthy California
Northern Valley Indian Health
Pit River Tribe
Resighini Rancheria
Riverside-San Bernardino County Indian Health System
Smith River Rancheria
Toiyabe Indian Health Project
Tule River Indian Health Center, Inc.
United Indian Health Services, Inc.
Warner Mountain Indian Health Clinic
Yurok Tribe
Opposition
California Nurses Association
AB 941
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Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097