BILL ANALYSIS �
AB 1896
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Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 1896 (Chesbro) - As Amended: March 27, 2012
SUBJECT : Tribal health programs: health care practitioners.
SUMMARY : Exempts from California licensure all health care
practitioners employed by a tribal health program as long as
they are licensed in another state. Specifically, this bill :
1)Provides that a person who is licensed as a health care
practitioner in any other state and is employed by a tribal
health program, as defined in federal law, shall be exempt
from any licensing requirement described in California law
governing the healing arts 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 Indian Self-Determination
and Education Assistance Act (ISDEAA).
2)Defines "health care practitioner" to mean any person who
engages in acts that are the subject of licensure or
regulation under the law of any other state.
EXISTING LAW
1)Licenses and regulates a number of healing arts professionals
under various boards within the Department of Consumer Affairs
(DCA).
2)Allows, until January 1, 2016, a hospital to enter into an
agreement with the Armed Forces of the United States (U.S.) to
authorize a physician and surgeon, physician assistant, or
registered nurse to provide medical care in the hospital under
specified conditions, including that the practitioner holds a
valid license in good standing to provide medical care in the
District of Columbia or any state or territory of the U.S.,
and that the practitioner registers with the appropriate
California licensing board, as specified.
3)Authorizes a physician and surgeon who is not licensed in
California but who is a commissioned officer on active duty in
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the medical corps of any branch of the armed forces of the
U.S. to practice medicine as part of a residency, fellowship,
or clinical training program under specified conditions.
These officers are required to register with the Medical Board
of California, as specified.
4)Authorizes, under federal law, a health care professional, as
defined, to practice his or her health profession in any state
or territory without licensure by that state if he or she has
a current license to practice the health profession and is
performing authorized duties for the Department of Defense.
5)Defines, under federal law, the term "tribal health program"
to mean an Indian tribe or tribal organization that operates
any health program, service, function, activity, or facility
funded, in whole or part, by the Indian Health Service (IHS)
through, or provided for in, a contract or compact with the
IHS under the ISDEAA.
6)Establishes, under the Patient Protection and Affordable Care
Act (PPACA), that licensed health professionals employed by a
tribal health program shall be exempt, if licensed in any
state, from the licensing requirement of the state in which
the tribal health program performs the services described in
the contract or compact of the tribal health program under the
ISDEAA.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal.
COMMENTS :
Purpose of this bill . According to the author, "Historically,
the Tribal Health Programs have experienced shortages in
doctors, dentists, nurses and other providers. According to the
Indian Health Service's Workforce report, the vacancy rates
range from 10% to 25% depending on the type of provider and this
is primarily attributed to the remoteness of many of the
facilities.
"California's 31 Tribal Health Programs operate 57 ambulatory
clinics in primarily rural regions and have substantial
difficulty hiring and retaining providers to work in the
facilities. These critically important safety net facilities
serve over 130,000 American Indian/Alaska Native (AI/AN)
patients and multiple Medi-Cal patients on an annual basis.
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This bill is necessary as it will enable Tribal Health Programs
to hire healthcare providers. The bill will amend the current
California Business and Professions (B&P) Code to align with
Federal law allowing professionals employed by tribal health
programs to work in states without licensure as long as they
hold a license from another state."
Background . Under current state law, health care practitioners
who provide services at tribal health centers must be licensed
by the appropriate healing arts board under DCA. However,
recently-enacted federal law under the PPACA exempts these
practitioners from licensing requirements of the state in which
they practice if they are licensed in another state. This bill
adds this provision to state law, in conformity with federal
law.
As states revamp their health care systems to prepare for
compliance with PPACA, the sponsors contend that this licensure
exemption should be specified in state law to avoid confusion
and possible litigation. They cite a federal law suit filed in
2011 by the Ponca Tribe of Nebraska after state officials there
ordered one of the tribe's doctors, who was licensed in Puerto
Rico, to stop practice. The tribe withdrew the suit when
Nebraska officials determined that the physician and the tribal
health center in which she worked fell under federal
jurisdiction.
Supporters also assert that this legislation will assist in
filling the shortage of health care providers at tribal health
centers in the state, by removing a possible barrier for those
professionals to practice in California.
Tribal health programs and consumer protections . California's
health care licensing boards have the ability to act on behalf
of consumers to discipline licensees who harm or pose a risk of
harm to patients. Federal law under PPACA and this bill
authorize the removal of this layer of consumer protection
regarding health care practitioners working in tribal health
settings. However, according to the sponsor, patients would
still have several avenues by which they could pursue consumer
complaints:
The Federal Tort Claims Act, which allows parties claiming to
have been injured by negligent actions of employees of the
U.S. to file claims against the federal government. This
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encompasses negligent acts of Tribal contractors carrying out
contracts, grants, or cooperative agreements pursuant to the
ISDEAA;
The IHS, which, among other avenues, offers a web-based
patient safety adverse event reporting system called
WebCident;
Tribal health program governing boards, which includes an
anonymous reporting hotline operated by the United Indian
Health Service, a tribally owned and governed Indian health
care service in Humboldt and Del Norte counties; and,
The licensing boards in other states that issue practitioner
licenses.
Indian health care . According to the National Indian Health
Board (NIHB), the system for delivering health care services to
AI/ANs is unique: "It was designed by the Federal government to
carry out the Federal trust responsibility for Indian health.
In addition, Federal policy dictates that the Federal government
interact with Indian tribes on a government-to-government
basis."
The trust relationship establishes a responsibility for a
variety of services and benefits to Indian people based on their
status as Indians, including health care. This relationship has
been defined in case law and statute as a political relationship
that further distinguishes Indians from racial classification
for purposes of affirmative action laws and other federal
statutes that establish federally funded programs for the
general public.
Treaties between the U.S. Government and Indian Tribes
frequently call for the provision of medical services, the
services of physicians, or the provision of hospitals for the
care of Indian people. Even before these treaties, the U.S.
Constitution specifically addressed the federal government's
primacy role in dealing with Indians in the commerce and treaty
clauses. Supreme Court cases, such as Cherokee Nation v.
Georgia (1831), specifically address the relationship between
Tribes, states, and the federal government. Out of this case
and others, the guardian/ward relationship was created that
forms the basis of the trust relationship.
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The Snyder Act of 1921 and the Indian Health Care Improvement
Act (IHCIA) of 1976 provide specific legislative authority for
Congress to appropriate funds specifically for the health care
of Indian people. In addition, numerous other laws, court
cases, and Executive Orders reaffirm the unique relationship
between tribal governments and the federal government.
In addition to their treaty rights to federal health care
services, AI/ANs are eligible as U.S. citizens to participate in
all public, private, and state health programs available to the
general population.
Indian tribes perform several roles in the health care context.
They are governments, employers, health care providers, patient
advocates, and beneficiaries of the U.S. trust responsibility
for health.
Indian health care services are provided in three ways:
IHS direct health care services, which are administered
through a system of 12 Area offices and 157 IHS and tribally
managed service units.
Tribally-operated health care services, which are operated
under the authority of the ISDEAA, Titles I and V. There are
82 Title V compacts, funded through 107 Funding Agreements.
These compacts represent 337 Tribes - nearly 60% of all the
federally recognized Tribes. There are also approximately 231
Tribes and tribal organizations that contract under Title I.
Overall, over half of the IHS budget authority appropriation
is administered by Tribes, primarily through
Self-Determination contracts or Self-Governance compacts.
Urban Indian health care services and resource centers, which
include 33 urban programs ranging from community health to
comprehensive primary health care services. Approximately
600,000 AI/ANs reside in counties served by urban Indian
health programs.
The federal system consists of 29 hospitals, 68 health centers,
and 41 health stations. The IHS clinical staff consists of
approximately 2590 nurses, 860 physicians, 660 pharmacists, 640
engineers/sanitarians, 340 physician assistants/nurse
practitioners, and 310 dentists. The IHS also employs various
allied health professionals, such as nutritionists, health
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administrators, and medical records administrators.
Through ISDEAA contracts, American Indian Tribes and Alaska
Native corporations administer 16 hospitals, 258 health centers,
74 health stations, and 166 Alaska village clinics. According
to the IHS, "Self-governance compacting affords Tribes the most
flexibility to tailor health care services to the needs of their
communities. Tribes overwhelmingly agree that having the
ability to create a comprehensive approach to health services is
the greatest benefit of the Tribal Self-Governance Program.
Other benefits include improved communication between tribal
programs; partnerships with state and local governments to
provide services; innovative health programs; establishment of a
Tribal Self-Governance Advisory Committee; and, creation of the
Office of Tribal Self-Governance to serve as a federal-tribal
liaison, offer technical assistance to Tribes, coordinate and
lead policy discussions, and provide access to the IHS
Director."
The IHS . The IHS provides a comprehensive health service
delivery system for approximately 1.9 million AI/ANs who belong
to 564 federally recognized tribes in 35 states. The IHCIA is
the key legal authority for the provision of health care to
AI/ANs. As Congress states in the findings of IHCIA: "Federal
health services to maintain and improve the health of the
Indians are consonant with and required by the Federal
government's historical and unique legal relationship with, and
resulting responsibility to, the American Indian people." Along
with the Snyder Act of 1921, the IHCIA forms the statutory basis
for the delivery of health care to AI/ANs by the IHS.
All IHS hospitals are accredited by the Center for Medicare and
Medicaid Services or The Joint Commission (TJC), an independent,
not-for-profit organization that accredits and certifies more
than 19,000 health care organizations and programs in the U.S.
Accreditation and certification by TJC is recognized nationwide
as a symbol of quality that reflects an organization's
commitment to meeting certain performance standards.
Most large clinics and many smaller clinics are accredited by
TJC or the Accreditation Association for Ambulatory Health Care.
In addition, most youth regional treatment facilities are
either accredited by TJC or the Commission on Accreditation of
Rehabilitation Facilities.
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Indian health disparities . According to a March 2009 fact sheet
issued by the NIHB:
13% of Indian deaths occur in those younger than 25, a rate
three times higher than the U.S. population.
The U.S. Commission on Civil Rights reported in 2003 that
"American Indian youths are twice as likely to commit
suicide?" as other youth. Also, suicide ranked as the second
leading cause of death for AI/ANs aged 10 to 34 as reported by
the Center for Disease Control and Prevention's National
Center for Injury Prevention and Control.
Indians are 550% more likely to die from alcoholism, 200% more
likely to die from diabetes, and 150% more likely to suffer
accidental death compared with other groups.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Indian Heath Board (sponsor)
California Rural Indian Heath Board, Tribal Governments
Consultation Committee
Opposition
None on file.
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301