BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 941
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|AUTHOR: |Wood |
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|VERSION: |February 26, 2015 |
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|HEARING DATE: |June 24, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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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 :
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|Assembly Floor: |77 - 0 |
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|Assembly Appropriations Committee: |16 - 0 |
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|Assembly Health Committee: |19 - 0 |
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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
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