BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 2392
AUTHOR: John A. Pérez
AMENDED: May 25, 2012
HEARING DATE: June 27, 2012
CONSULTANT: Bain
SUBJECT : Medi-Cal: interpreter services.
SUMMARY : Requires the Department of Health Care Services (DHCS)
to seek federal funding to establish a program to provide and
reimburse for certified medical interpretation services to
Medi-Cal beneficiaries who are limited English proficient (LEP).
Existing law:
1.Establishes the Medi-Cal program, which is administered by
DHCS, under which qualified low-income individuals receive
health care services.
2.Provides, under federal law, increased federal matching
funding for translation and interpretation services provided
in connection with the enrollment, retention, and use of
services under Medicaid (Medicaid is known as Medi-Cal in
California) and the Children's Health Insurance Program (CHIP
is known as the Healthy Families Program in California).
3.Prohibits, under Title VI of the Civil Rights Act of 1964, a
person in the United States, on the grounds of race, color, or
national origin, from being excluded from participation in,
denied the benefits of, or subjected to discrimination under
any program or activity receiving federal financial
assistance.
This bill:
1.Requires DHCS to seek federal funding to establish a program
to provide and reimburse for certified medical interpretation
services to Medi-Cal beneficiaries who are LEP.
2.Requires the program to offer medical interpreter services to
Medi-Cal providers serving Medi-Cal beneficiaries on either a
fee-for-service (FFS) or managed care basis, pursuant to this
bill.
3.Permits a health care provider or entity entering into a
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Medi-Cal provider agreement or a Medi-Cal managed care
contract with the state, including Medi-Cal managed care
organizations (MMCOs), MMCO subcontracting plans, and FFS
providers, to utilize the program to provide medical
interpreter services to Medi-Cal beneficiaries.
4.Requires all contracts between MMCOs and their subcontractors,
including health providers and other health plans, to include
provisions describing access to medical interpreter services
under this program.
5.Requires DHCS to pursue all available sources of federal
funding to establish and administer the medical interpretation
program and to seek any federal approvals necessary to
implement this bill.
6.Requires DHCS to develop a mechanism to leverage existing
sources of funding associated with medical interpretation
services, in order to fully offset state General Fund (GF)
costs for the provision of medical interpretation services and
program administration.
7.States legislative intent to do all of the following:
a. Create a program that provides reliable access to
language interpretation for Medi-Cal beneficiaries who are
LEP;
b. Establish a mechanism for accessing federal Medicaid
matching funds to provide funding for the program;
c. Enable trained and qualified interpreters to meet the
demand for language services for a significant portion of
LEP Medi-Cal beneficiaries; and
d. Facilitate accurate and timely communication between LEP
patients and their health care providers, which will
improve quality of care, reduce medical errors, increase
patient understanding and compliance with health diagnoses
and care plans, and reduce the cost of health care by
eliminating unnecessary tests and other care.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1.Costs for a number of activities as noted below. Costs would
generally be at a 50 percent GF, 50 percent federal funds
matching rate except for costs associated with services used
by children, subject to federal approval. Pursuant to the
Children's Health Insurance Program Reauthorization Act of
2009 (CHIPRA) and subsequent federal guidance, language
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services for children can be claimed at a 25 percent GF, 75
percent federal funds matching rate. Children comprise
approximately half of the Medi-Cal population.
2.This bill requires DHCS to develop a mechanism to leverage
existing funding associated with medical interpretation
services, in order to fully offset increased state GF costs.
Thus, the only net state costs are the following:
a. One-time administrative costs in the range of $1 million
(50 percent GF, 50 percent federal funds) to DHCS to seek
federal approvals, create system protocols, develop an IT
infrastructure, design communications and guidance,
promulgate regulations, consult with stakeholders, and
other initial program development activities; and
b. If DHCS establishes an accreditation system for
qualifying language providers as stated in the intent
language of this bill, one-time costs of $100,000 (50
percent GF, 50 percent federal funds) to develop standards
and promulgate regulations, as well as $50,000 or more
ongoing to credential these providers.
3.The extent to which a centralized medical interpretation
system would increase the number of medical interpretation
visits, given that the program would have to rely on
leveraging existing funding for these purposes, is unknown.
The availability of enhanced 75 percent federal match for
services provided to children through a centrally administered
system, and the potential for increased cost efficiency of
such a system, suggests it may be possible to increase the
number and quality of visits provided, with negligible
additional state costs.
4.Potential impact on medical services used is also difficult to
estimate, but improved access to high-quality interpretive
services is likely to improve access to care and, on balance,
increase overall medical costs to the Medi-Cal program for LEP
beneficiaries.
PRIOR VOTES :
Assembly Health: 14- 5
Assembly Appropriations:12- 5
Assembly Floor: 52- 24
COMMENTS :
1.Author's statement. More than 40 percent of Californians speak
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a language other than English at home. Almost 7 million
Californians are estimated to speak English "less than very
well." Research finds that language barriers can contribute to
inadequate patient evaluation and diagnosis, lack of
appropriate and/or timely treatment, or other medical errors
that can jeopardize patient safety and lead to unnecessary
procedures and costs. Today, language assistance in medical
settings is provided by trained or untrained staff, or in an
informal manner by family members or friends. California has
an opportunity to develop a more comprehensive language
assistance program by seeking additional federal funding for
medical interpreter services in the Medi-Cal program.
2.Enhanced federal matching funds for translation and
interpretation services. CHIPRA, Public Law 111-3, enacted on
February 4, 2009, contains provisions that affect both CHIP
and Medicaid. In July 2010, the Centers for Medicare and
Medicaid Services (CMS) provided guidance on the
implementation of Section 201(b) of CHIPRA, which provides
increased administrative funding for translation or
interpretation services provided under CHIP and Medicaid.
Under Medicaid, increased federal funding for translation and
interpretation services available under CHIPRA is limited to
children and family members of those children. Under CHIP,
increased federal funding for translation and interpretation
services is not just limited to children, and includes
pregnant women receiving CHIP coverage.
Prior to CHIPRA, states could claim federal matching funds for
translation or interpretation costs as either an
administration expense or as a medical assistance-related
expense, and were reimbursed at the standard Federal Medical
Assistance Percentage (regular FMAP) rate (which is typically
50 percent in California for Medi-Cal and 65 percent for the
Healthy Families Program).
CHIPRA provides increased federal matching funding for
translation or interpretation services provided to eligible
individuals for whom English is not their primary language.
The increased federal match for translation or interpretation
services differs for Medicaid and CHIP. For Medicaid, the
increased match is 75 percent of allowable expenditures. For
CHIP, the increased match is 75 percent, or the state's
enhanced FMAP plus 5 percent, whichever is higher (in
California, it would be 75 percent). However, the increased
federal match is only available for eligible expenditures
AB 2392 | Page
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claimed as administration of the Medicaid or CHIP plan, not
expenditures claimed for benefits (which are matched at the
state's usual FMAP rate of 50 percent for Medi-Cal and 65
percent for CHIP). In addition, the expenditures that qualify
for the increased match under CHIP are subject to the 10
percent cap on administrative expenditures.
3.Federal anti-discrimination law. Title VI of the Civil Rights
Act of 1964 and its implementing regulations provide that no
person shall be subject to discrimination on the basis of
race, color, or national origin under any program or activity
that receives federal financial assistance. Each federal
department has a civil rights office that is charged with
ensuring that its programs are free of discrimination. The
federal Department of Health and Human Services (HHS) Office
for Civil Rights (OCR) responsibilities include enforcing the
Civil Rights Act, the Americans with Disabilities Act, and the
Age Discrimination Act. Any organization or individual who
receives monies through HHS-health departments, health plans,
social service agencies, nonprofits, hospitals, clinics, and
physicians-is subject to OCR oversight. The OCR has the
authority to investigate complaints related to linguistic
barriers, to initiate its own reviews, and to withhold federal
funds for noncompliance.
4.OCR policy guidance. CMS issued a State Medicaid Director
letter on August 31, 2000, that informed states of the policy
guidance that the OCR had issued on the prohibition against
national origin discrimination as it affects persons with LEP,
pursuant to Title VI of the Civil Rights Act of 1964.
OCR Policy Guidance requires recipients of federal assistance to
take reasonable steps to ensure meaningful access to their
programs and activities by LEP persons. The Guidance explains
that the obligation to provide meaningful access is
fact-dependent and starts with an individualized assessment
that balances four factors: (1) the number or proportion of
LEP persons eligible to be served or likely to be encountered
by the program or grantee; (2) the frequency with which LEP
individuals come into contact with the program; (3) the nature
and importance of the program, activity or service provided by
the recipient to its beneficiaries; and (4) the resources
available to the grantee/recipient and the costs of
interpretation/ translation services. CMS states there is no
"one size fits all" solution for Title VI compliance with
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respect to LEP persons, and what constitutes "reasonable
steps" for large providers may not be reasonable where small
providers are concerned.
5.Data on language in California. According to the US Census'
2010 American Community Survey, 43.7 percent of Californians
over the age of 5 speak a language other than English, and
19.9 percent of Californians over the age of 5 speak English
"less than very well." According to the California Health
Interview Survey (CHIS), of the 3.5 million adults in the
Medi-Cal program, about 281,000 (8.1 percent) had difficulty
understanding their doctor and/or needed another person to
help them understand their doctor. Among the parents of 1.8
million children under age 12 in the Medi-Cal program, about
135,000 (7.4 percent) had difficulty understanding the child's
doctor and/or needed another person's help to understand the
doctor.
6.Prior legislation. SB 442 (Calderon) of 2011 would have
required general acute care hospital policies for the
provision of language assistance to patients with language or
communication barriers to include procedures for discussing
with the patient any cultural, religious, or spiritual beliefs
or practices that may influence care, and to increase the
ability of hospital staff to understand and respond to the
cultural needs of patients. Would have required hospitals'
policies on language assistance services to include criteria
on proficiency similar to those that apply to health plans. SB
442 was vetoed by the Governor.
SB 1405 (Soto) of 2006 would have required the Department of
Health Services (now DHCS) to create the Task Force on
Reimbursement for Language Services, as specified, to develop
a mechanism for seeking federal matching funds from CMS to pay
for language assistance services, as specified. SB 1405 was
placed on the inactive file.
AB 800 (Yee), Chapter 313, Statutes of 2005, requires all
health facilities (hospitals, skilled nursing facilities,
intermediate care facilities, correctional treatment centers)
and all primary care clinics to include a patient's principal
spoken language on the patient's health records.
SB 853 (Escutia), Chapter 713, Statutes of 2003, requires the
Department of Managed Health Care and the California
Department of Insurance to adopt regulations to ensure
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enrollees have access to language assistance in obtaining
health care services.
7.Support. Western Center on Law & Poverty states this bill
would assist California in drawing down additional federal
funds for the interpreter services Medi-Cal providers and
plans are required to provide. While Medi-Cal managed care
plan rates include funds for interpreter services and some
providers draw down federal funds for language services (such
as hospitals), California is leaving federal dollars on the
table that it could use to provide these critical services.
The American Federation of State, County and Municipal
Employees, AFL-CIO (AFSCME) writes in support that, with the
expansion of Medi-Cal and the implementation of the California
Health Benefit Exchange under federal health care reform, the
state has a clear opportunity to create an interpreters'
program that will allow patients and providers to clearly
communicate with each other. AFSCME states that, during these
difficult fiscal times, the state should seek to maximize all
federal dollars to help the Medi-Cal program, and matching
funds for health care interpretation will help our state
respond to the needs of LEP Californians.
Health Access California writes in support that professional
interpreters trained in medical interpretation are critical as
medical terminology is not readily translated, cultural
sensitivity is lost, and avoidable medical errors occur.
8.Policy issues.
a. Key details not specified. This bill requires medical
interpretation services to be provided, but does not define
the scope of medical interpretation services (e.g., how
many languages would be provided), how the services would
be provided (whether the services are provided via phone,
video or in person), the hours of operation of the service,
and whether providers or plans will be charged for the use
of the service.
b. State options in providing interpretation services. This
bill requires DHCS to seek federal funding to establish a
program to provide and reimburse for certified medical
interpretation services to Medi-Cal beneficiaries who are
LEP.
AB 2392 | Page 8
CMS policy guidance states that in order to obtain the
increased translation and interpretation federal matching
funds, states and health care providers may:
§ Enter into a contract or employ staff that provide
solely translation or interpretation functions and claim
related costs as administration; and/or
§ Pay for translation or interpretation activities to
assist the medical provider of record for the service
separately as administrative expenditure, in addition to
the rate paid for the medical service itself.
Under Medicaid or CHIP, if translation or interpretation
services are provided by a contracted managed care entity
and funded through a capitated payment from the state,
related costs in that rate are not eligible for the
increased translation/interpretation match rate because the
capitated payment is a benefit expenditure, not an
administrative expenditure. However, CMS indicates this
would not preclude states from carving out the
responsibility for translation or interpretation from the
scope of a managed care contract and instead contracting
for such services separately as an administrative activity.
There are several models for providing interpretation
services. The Medi-Cal Language Access Taskforce Report
issued a report in 2009 that includes a recommendation to
DHCS described as a hybrid Brokerage/Direct Provider
Reimbursement model to finance the provision of language
services within the Medi-Cal FFS program. This
recommendation was based on a review of four reimbursement
models that 13 states and the District of Columbia utilize:
a) telephonic interpreter reimbursement; b) direct
interpreter reimbursement model; c) direct provider
reimbursement model; and, d) language services
agency/broker reimbursement model. The MCLAS Taskforce
analyzed the positive aspects and the challenges of each
model generally and also specifically in light of
California's Medi-Cal program.
a. Potential cost shift to state. The program envisioned in
this bill may increase the availability and improve the
quality of language services to Medi-Cal enrollees, but it
also would encourage a significant cost shift from private
providers, who are currently required to provide these
services under federal law and/or managed care plan
contracts, to the state. For example, DHCS requires
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Medi-Cal managed care plans to provide interpreter services
on a 24-hour basis as part of their requirement to comply
with Title VI of the federal Civil Rights Act.
When this bill left the Assembly Appropriations suspense
file, a provision was added to this bill that requires DHCS
to develop a mechanism to leverage existing sources of
funding associated with medical interpretation services in
order to fully offset state GF costs for the provision of
medical interpretation services and program administration.
This provision acknowledges that some entities (health
plans) are paid for interpretation services as part of
their contract and could use the program created by this
bill as an alternative to being reimbursed for
interpretation services as part of their capitation rate.
b. Enhanced funding also available for Healthy Families.
This bill addresses DHCS but the state's Healthy Families
Program, which is administered by the Managed Risk Medical
Insurance Board, would also be eligible for enhanced FMAP
funding for medical interpretation services. However, the
expenditures that qualify for the increased match under
Healthy Families are subject to the 10 percent cap on
administrative expenditures. MRMIB indicates it anticipates
its 2012/13 fiscal year administrative costs to be 6
percent.
c. Certified medical interpretation services. This bill
requires DHCS to seek federal funding to establish a
program to provide and reimburse for certified medical
interpretation services to Medi-Cal beneficiaries who are
LEP. However, the bill does not define who would perform
the certification for these services.
SUPPORT AND OPPOSITION :
Support: American Federation of State, County and Municipal
Employees, AFL-CIO
California Academy of Family Physicians
California Communities United Institute
California Pan-Ethnic Health Network (in concept)
Children Now
Children's Defense Fund - California
The Children's Partnership
Congress of California Seniors
Disability Rights California
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Health Access California
Latino Coalition for a Healthy California
National Association of Social Workers - California
Chapter
Western Center on Law and Poverty
Oppose: None received.
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