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  







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                    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.








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          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  








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            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.  








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            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  








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            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  








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            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  








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            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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