BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 941 --------------------------------------------------------------- |AUTHOR: |Wood | |---------------+-----------------------------------------------| |VERSION: |February 26, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |June 24, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Vince Marchand | --------------------------------------------------------------- SUBJECT : Clinics: licensure and regulation: exemption SUMMARY : Exempts from licensure and regulation by the Department of Public Health any clinic operated by a federally recognized Indian tribe under a contract with the United States pursuant to the Indian Self-Determination and Education Assistance Act, regardless of the location of the clinic. Existing state law: 1)Licenses and regulates clinics, including primary care clinics and specialty clinics, by the Department of Public Health (DPH). 2)Exempts various types of clinics from licensure and regulation by DPH, including clinics operated by a federally recognized Indian tribe or tribal organization, as defined, that are located on land recognized as tribal land by the federal government. Among the other types of clinics exempt from licensure by DPH are the following: a) Any establishment that is owned and operated as a clinic by one or more licensed health care practitioners and used as an office for the practice of their profession, with the exception of surgical clinics and specialty clinics; b) Clinics operated as outpatient departments of hospitals; c) A clinic operated by, or affiliated with, any institution of learning that teaches a recognized healing art and is approved by the state board or commission vested with responsibility for regulation of the practice of that healing art; d) An intermittent clinic that is open for no AB 941 (Wood) Page 2 of ? more than 20 hours per week, and that is operated by a licensed primary care clinic; and, e) Student health centers operated by public institutions of higher education. 3)Exempts a health care practitioner that is licensed in any other state, and who is employed by a tribal health program, from any requirement to be licensed in California with respect to acts authorized under the person's license in another state, where the tribal health program performs services under the Indian Self-Determination and Education Assistance Act. 4)Establishes within the Department of Health Care Services (DHCS) the Indian Health Program (IHP), which is charged to improve the health status of American Indians living in urban, rural, and reservation or rancheria communities throughout California. Existing federal law: 1)Establishes the Indian Health Service (IHS), which is charged with providing federal health services to American Indians and Alaska Natives who are members of 566 federally recognized Tribes across the United States. 2)Establishes the Indian Self-Determination and Education Assistance Act (ISDEAA), which was enacted to ensure "effective and meaningful participation by the Indian people in the planning, conduct, and administration" of federal services and programs provided to members of Tribes, including health care. Under ISDEAA, Tribes have the option to exercise their sovereignty by either assuming from IHS the administration and operation of providing health care themselves (through contracts), or to continue to receive health care through the IHS-administered, direct-care health system. 3)Specifies areas in which tribes are permitted to contract with IHS to provide health care services under ISDEAA, known as "contract health service delivery areas." California is a contract health service delivery area, except for the following 20 excluded counties: 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. AB 941 (Wood) Page 3 of ? This bill: Exempts from licensure and regulation by DPH any clinic conducted, maintained, or operated by a federally recognized Indian tribe or tribal organization, as defined in federal law, under a contract with the United States pursuant to ISDEAA, as specified, regardless of the location of the clinic. FISCAL EFFECT : According to the Assembly Appropriations Committee, this bill will result in minor annual revenue loss to DPH, to the extent tribal clinics no longer pay approximately $700 per facility in licensing fees. DPH oversight workload will be reduced commensurately with any reduction in licensure fees. PRIOR VOTES : ----------------------------------------------------------------- |Assembly Floor: |77 - 0 | |------------------------------------+----------------------------| |Assembly Appropriations Committee: |16 - 0 | |------------------------------------+----------------------------| |Assembly Health Committee: |19 - 0 | | | | ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, many Native American tribes operate their own health programs for their members on the reservation, but often times many tribal members live off the reservation. Due to the geographic nature of the North Coast, many members off the reservation have a difficult time accessing health care. In order to better serve these members, tribal groups have opened new tribal health clinics off the reservation to expand health care services to their tribal members. However, opening a tribal clinic off the reservation is a very burdensome process. One cumbersome application in the process is the state facility license within DPH, which is known to be time-consuming, costly, and includes duplicative paperwork. Tribal clinics are already required to be licensed under the federal government and Indian Health Services, which already cover the same requirements that DPH's state facility license seeks to regulate. By streamlining the facility licensing process, tribal clinics would be able to focus more time to providing AB 941 (Wood) Page 4 of ? quality health care to tribal and non-tribal members off the reservation. 2)Background on ISDEAA and tribal health services in California. In 1975, the ISDEAA was signed into law. The ISDEAA reaffirmed congressional support of the nation-to-nation relationship between the United States and each Tribal nation. The ISDEAA was enacted to ensure "effective and meaningful participation by the Indian people in the planning, conduct, and administration" of federal services and programs provided to the Tribes and their members. Under the ISDEAA, Tribes and Tribal Organizations have the option to either (1) administer programs and services the IHS would otherwise provide (referred to as Title I Self-Determination Contracting) or (2) assume control over health care programs and services that the IHS would otherwise provide (referred to as Title V Self-Governance Compacting). These options are not exclusive; Tribes may choose to combine them based on their individual needs and circumstances. According to IHS, California is home to the largest population of American Indians/Alaska Natives in the country. According to the 2010 Census, California's Indian population was 362,801. California is home to 107 federally recognized tribes. The California Rural Indian Health Board (CRIHB), the sponsor of this bill, reports that there are approximately 34 clinics operated by tribal health programs in California: 13 of these clinics are off tribal land and are currently licensed by DPH, while 21 clinics are either on tribal land or meet one of the other licensure exemptions (for example, affiliation with an institution of higher education that offers a health profession education program). All of these tribal health programs are provided in "contract health service delivery areas," which are federally designated areas that are located in counties that contain, or are adjacent to, tribal land. Separate from these tribal health programs in contract areas, IHS funds eight "urban health programs" that operate under a separate provision of federal law, intended to offer services to Indians located in urban areas. This bill would not affect urban tribal health programs, as this bill is limited to clinics in contract areas (typically more rural). While the primary purpose of tribal health programs is to provide federally required health care to tribal members, these programs can, if they choose, treat non-tribal members. AB 941 (Wood) Page 5 of ? This is true regardless of whether the clinic is located on or off tribal land. These clinics, again regardless of where they are located, are permitted to seek reimbursement from Medicare and Medi-Cal, though they have to be certified by the Centers for Medicare and Medicaid Services (CMS) in order to bill these programs. CRIHB reports that almost all tribal clinics in California are CMS-certified. 3)Background on DHCS' Indian Health Program. Within DHCS is the IHP, which is directed to improve the health status of American Indians living in California. The IHP provides technical assistance and training to American Indian health clinics, and also coordinates with similar programs of the federal government, other state, and voluntary programs, and conducts studies on the health and health services available to American Indians and their families in California. Additionally, IHP administers the American Indian Infant Health Initiative, and manages a Tribal Emergency Preparedness program via an inter-agency agreement with DPH's Emergency Preparedness Office. According to DHCS, highlights of IHP's activities include training and technical assistance via site visits, webinars, and phone consultation to clinics on quality assurance/improvement, infection control, licensing and certification issues, program development, billing, and accreditation. 4)Related legislation. AB 1130 (Gray), would expand the licensure exemption for intermittent clinics that are operated by licensed clinics on separate premises by permitting these intermittent clinics to be open for up to 30 hours per week, instead of only 20 hours per week. AB 1130 is currently pending in this committee. 1)Prior legislation. AB 2264 (Levine, 2014), was substantially similar to this bill. AB 2264 was amended to address a different subject matter. AB 1896 (Chesbro, Chapter 119, Statutes of 2012), exempted a health care practitioner that is licensed in any other state, and who is employed by a tribal health program, from any requirement to be licensed in California with respect to acts authorized under the person's license in another state, where the tribal health program performs services under the ISDEAA. 1)Support. This bill is sponsored by CRIHB, and supported by AB 941 (Wood) Page 6 of ? numerous tribal health programs. CRIHB states that this bill would create a much-needed single standard for clinic licensure for federal Tribal Health Program sites. According to CRIHB, regardless of where a tribal health program is located, it is required to adhere to all federal Indian Health Service operating requirements in order to maintain its status as a federal contractor. CRIHB states that tribal health programs are committed to maintaining high standards of corporate conduct and are audited annually. CRIHB points out that there are currently more than fifteen state licensing exemptions for various types of health clinics in California. According to CRIHB, if a tribal health program is located on Indian land or has a working partnership with an institution of higher learning, it is exempt from state licensure, but if it is not located on Indian land or does not have an affiliation with an institution of higher learning, it must be licensed as a primary care clinic. CRIHB states that the multiple tribal health licensing standards create undue administrative challenges, confusion, and burden for tribal health programs in their mission of providing federally contracted health services. The Riverside-San Bernardino County Indian Health System, in its support letter, described delays in getting its two clinics licensed, and having to undergo an unnecessary comprehensive audit that resulted in a great deal of cost to its organization. The California Primary Care Association states in support that this bill is a simple yet effective way for tribal health organizations to meet the unique healthcare needs of the communities they serve in a culturally competent, accessible manner. 2)Opposition. This bill is opposed by the California Nurses Association (CNA) and the American Nurses Association/California (ANAC). CNA states that exemptions from state law generally exist because of federally recognized sovereignty in which agreements with respect to health services provided on federally designated tribal lands, or reservations, are managed by IHS. According to CNA, exempting tribal clinics not on tribal lands from licensing requirements creates disparity between requirements for clinics operated by IHS and clinics operated by other providers, even though they may be serving the same population. CNA states that tribal clinics see any patient who presents for care, and can bill Medicare and Medi-Cal for healthcare services provided to both tribal and non-tribal members alike. CNA states that California regulatory standards provide a level of patient AB 941 (Wood) Page 7 of ? safety that exceeds federal standards with regard to staffing and worker protections, and the process of clinic licensure assures a level of care that is consistent throughout California. ANAC states that it opposes this bill because it will exclude tribal health clinics from California licensing and safety provisions outside of federally designated tribal lands, and that without licensing, clinics would not have to comply with state building or state professional standards which assure minimal protections for employees working in clinics that may or may not be tribal members. 3)Letter of concern. The California State Council of the Service Employees International Union (SEIU California), in a letter of concern, states that under current law, in recognition of tribal sovereignty, tribal clinics are exempt from state facilities licensure when operated on tribal land. SEIU California notes that this bill would essentially treat tribal clinics the same, whether they were operated on, or off of tribal lands. SEIU California states that it is concerned that these clinics would be open to any Californian, not just members of the tribe and their families, and as such, patients may have a reasonable expectation that all state and federal licensure and certification standards have been applied, when in fact they would not have. SEIU California states that it would be willing to support an exemption from state licensure if this were a closed system of clinics, open only to members of the tribe and their relatives, consistent with exemptions for other facilities run by governmental entities, such as the Veteran's Administration facilities. 4)Different oversight standards. Under this bill, a tribal health program may operate a clinic, without obtaining licensure from DPH, anywhere in the state, as long as it is in one of the 38 counties that are not excluded. While the author and sponsors point out that the majority of these counties are in rural areas, there are some eligible counties that include significant urban centers, such as San Diego County. California law already permits tribal health programs, whether located on or off tribal land, to hire health care professionals who are licensed in any state. This could lead to a potential situation in which a non-tribal member walks into a tribal clinic, which could be in a relatively urban area, and not have recourse to the two sources of oversight most typically associated with a clinic: either DPH for a facility-based complaint, or a California professional AB 941 (Wood) Page 8 of ? licensing board for a complaint regarding an individual doctor or nurse. To be sure, the ability to hire a health care professional licensed in another state is already the law for all tribal clinics, regardless of their location. Additionally, CRIHB points out there are multiple sources of oversight of tribal health clinics, ranging from internal complaint procedures through the tribal health program itself or the tribal government that sanctions the clinic, to the complaint procedure governed by IHS. However, for non-tribal members unaccustomed to the IHS system, the complaint process will not be typical of the way it is handled in licensed clinics. SUPPORT AND OPPOSITION : Support: California Rural Indian Health Board (sponsor) Big Valley Band of Pomo Indians California Pan-Ethnic Health Network California Primary Care Association Chapa-De Indian Health Program Cloverdale Rancheria Feather River Tribal Health Greenville Rancheria Karuk Tribe Lake County Tribal Health Consortium Latino Coalition for a Healthy California Manchester-Point Arena Band of Pomo Indians Pit River Health Service Redding Rancheria Tribal Health Center Riverside-San Bernardino County Indian Health System Santa Ynez Tribal Health Clinic Sherwood Valley Band of Pomo Indians Smith River Rancheria Sonoma County Indian Health Project Southern Indian Health Council Toiyabe Indian Health Project Tule River Indian Health Center Twenty-Nine Palms Band of Mission Indians United Indian Health Services Warner Mountain Indian Health Clinic Yurok Tribe Oppose: American Nurses Association/California California Nurses Association AB 941 (Wood) Page 9 of ? -- END --