BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2392|
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THIRD READING
Bill No: AB 2392
Author: John A. Pérez (D), et al.
Amended: 8/31/12 in Senate
Vote: 21
SENATE HEALTH COMMITTEE : 6-3, 6/27/12
AYES: Hernandez, Alquist, De León, DeSaulnier, Rubio, Wolk
NOES: Harman, Anderson, Blakeslee
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/16/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
SENATE HEALTH COMMITTEE : 5-0, 8/23/12 (pursuant to Senate
Rule 29.10)
AYES: Hernandez, Alquist, DeSaulnier, Rubio, Wolk
NO VOTE RECORDED: Harman, Anderson, Blakeslee, De León
ASSEMBLY FLOOR : 52-24, 5/30/12 - See last page for vote
SUBJECT : Medi-Cal: interpreter services
SOURCE : Author
DIGEST : This bill establishes collective bargaining for
CommuniCal certified medical interpreters (CCMIs).
Senate Floor Amendments of 8/24/12 establish collective
bargaining for CCMIs.
CONTINUED
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Senate Floor Amendments of 8/21/12 establish the State
Personnel Board (SPB) as the certifying body for the CCMI
program established by this bill, and require the
Department of Health Care Services (DHCS) to establish the
CommuniCal program to provide and reimburse for certified
medical interpretation services to Medi-Cal beneficiaries
who are limited English proficient (LEP).
ANALYSIS :
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 the exclusive representative of CCMIs and a
recognized nonprofit to partner to create and administer
a training program for medical interpreters in order to
prepare medical interpreters for the exam or other
certification standards established for languages of
lesser diffusion, and to provide continuing education
for those CCMIs placed on the registry. Requires a
community advisory committee to be established to make
recommendations on interpreter certification and
services.
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2. Requires that the relationship of CCMIs to all parties
and recipients of service is one of independent
contractor unless otherwise specified by law.
3. Allows only interpreters certified under this bill to be
represented by the union for purposes of collective
bargaining authorized under this bill.
4. Requires CCMIs to have the right to form, join, and
participate in the activities of a labor organization of
their own choosing for purpose of representation. The
state action antitrust exemption to the application of
federal and state antitrust laws is applicable to the
activities of CCMIs and their exclusive representatives
authorized under this bill or other applicable law.
5. Requires CCMIs to have the right to be represented by an
exclusive labor organization of their own choosing for
the purpose of collecting bargaining with the state of
California on matters of mutual concern, including but
not limited to, a list of 10 specific provisions,
including development, maintenance and application of
the registry, the setting of reimbursements and rates
for state-funded medical interpreter programs.
6. States that CCMIs are not public employees, and this
bill does not create an employer-employee relationship
between CCMIs and the state or broker.
7. Requires the appropriate bargaining unit for CCMIs to be
a statewide unit of eligible CCMIs.
8. Requires a labor organization as referenced in this bill
to be a labor organization under a specified provision
of the Internal Revenue Code which has as its primary
purpose the representation of public service providers
in their relations with state and other public entities.
9. Requires, upon request by a labor organization that is
signed by 20% of CCMIs, the certifying body to furnish
to the labor organization a list of all CCMIs, including
full names, telephone numbers, email addresses, and
mailing or home addresses within five days of the
request.
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10.Requires the Public Employment Relations Board (PERB),
upon application by petition, authorization cards, or
union membership cards of a labor organization
adequately showing that a majority of CCMIs in the state
desire to be represented exclusively by that labor
organization and no other, to certify and grant
exclusive representation to the labor organization.
Requires, if less than a majority but at least 30% of
CCMIs to be represented exclusively by that labor
organization, the matter to be set for a mail ballot
election.
11.Requires any representation election to be a mail ballot
election.
12.Establishes requirements for a preelection conference
between the state and the labor organization, prohibits
other labor organizations from being allowed to
intervene in an election unless the intervening labor
organization shows at least 30% of the CCMIs desire to
be represented exclusively by the intervening labor
organization, and require PERB to initiate a mail ballot
election.
13.Requires a labor organization certified by PERB as
receiving a majority of all valid votes cast to be the
exclusive representative of all CCMIs in the state, and
requires all CCMIs who are eligible for the bargaining
unit after the certification to be part of the
bargaining unit and represented by the labor
organization.
14.Requires discussions and collective bargaining between
the certified labor organization and the state and its
designated agents in the Department of Personnel
Administration (DPA) and the DHCS to commence within 30
days upon certification and at any time thereafter upon
request of the labor organization.
15.Establishes requirements for agreements resulting from
collective bargaining, and for dues or service fee
reductions, and fair share service fees. Requires the
state, after certification of the labor organization, to
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approve and have deducted appropriate reimbursement or
other payments to the monthly amount of dues or service
fees. Requires the state to approve and have deducted
from the appropriate reimbursement or other payments to
nonmembers a reasonable fair share service fee.
16.Requires the state, through its designated agents in DPA
and DHCS, to meet and collectively bargain in good faith
with representatives of a certified labor organization
and to fully consider the proposals made by the labor
organization on behalf of CCMIs.
17.Prohibits the state from interfering with, intimidating,
restraining, coercing or discriminating against CCMIs
due to the exercise of their rights, and requires a
complaint alleging a violation of this provision to be
processed as an unfair practice charge.
18.Permits any charging party, respondent or intervenor
aggrieved by a final decision or order of PERB in an
unfair practice case to petition for a writ of
extraordinary relief from that decision or order.
19.Requires that execution of a valid written agreement
between the state and the certified labor organization
to bar the filing of an application or petition for
certification of a majority representative for the
length of the agreement except as otherwise provided in
this bill.
20.Prohibits the state from encouraging or discouraging
membership in a labor organization or discriminating
against any CCMI on specified basis, including, but not
limited to, union activity, union membership, age, sex,
race, or religious beliefs.
21.Permits the state to adopt reasonable rules and
regulations after consultation in good faith with
representatives of a certified labor organization for
administration of CCMIs under this bill.
22.Requires the quality standards that are required to be
adopted by this bill to include, but not be limited to,
maintaining patient confidentiality and familiarity or
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experience working with medical terminology.
23.Permits the certifying body to remove the name of a
person from the CCMI registry if the person fails to
meet the quality standards and medical certification
requirements established under this bill.
24.Requires DHCS to adopt policies to prohibit duplicate
payments to CCMIs and Medi-Cal Managed Care
Organizations (MMCO) for beneficiaries enrolled in an
MMCO.
25.Makes the state action antitrust exemption to the
application of federal and state antitrust laws
applicable to the activities of CCMIs and their
exclusive representatives authorized under this bill or
other applicable law.
26.Requires the base Medi-Cal reimbursement rate for CCMIs
to be determined through collective bargaining under
this bill and to include the cost of the broker.
Permits reimbursement to be adjusted for factors such as
geography, language spoken, availability of
interpreters, level of certification, and travel time.
27.States, for purposes of the CommuniCal program, CCMIs
are not state employees. Requires that CCMIs are
independent contractors of the state.
Background
Enhanced federal matching funds for translation and
interpretation services . Children's Health Insurance
Program Reauthorization Act of 2009 (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
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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% in California for Medi-Cal and 65% 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% of allowable
expenditures. For CHIP, the increased match is 75%, or the
state's enhanced FMAP plus 5%, whichever is higher (in
California, it would be 75%). However, the increased
federal match is only available for eligible expenditures
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% for Medi-Cal and 65% for
CHIP). In addition, the expenditures that qualify for the
increased match under CHIP are subject to the 10% cap on
administrative expenditures.
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
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OCR has the authority to investigate complaints related to
linguistic barriers, to initiate its own reviews, and to
withhold federal funds for noncompliance.
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 respect to LEP persons, and what constitutes
"reasonable steps" for large providers may not be
reasonable where small providers are concerned.
Data on language in California . According to the U.S.
Census' 2010 American Community Survey, 43.7% of
Californians over the age of five speak a language other
than English, and 19.9% of Californians over the age of
five speak English "less than very well." According to the
California Health Interview Survey, of the 3.5 million
adults in the Medi-Cal program, about 281,000 (8.1%) 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%) had difficulty
understanding the child's doctor and/or needed another
person's help to understand the doctor.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/27/12)(per Senate Health Committee
analysis)
AFSCME, 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
Congress of California Seniors
Disability Rights California
Health Access California
Latino Coalition for a Healthy California
National Association of Social Workers - California Chapter
The Children's Partnership
Western Center on Law and Poverty
ARGUMENTS IN SUPPORT : Western Center on Law and Poverty
states this bill assists 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.
AFSCME, AFL-CIO writes 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 that professional
interpreters trained in medical interpretation are critical
as medical terminology is not readily translated, cultural
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sensitivity is lost, and avoidable medical errors occur.
ASSEMBLY FLOOR : 52-24, 5/30/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Dickinson, Eng, Feuer, Fong, Fuentes, Furutani,
Galgiani, Gatto, Gordon, Hall, Hayashi, Roger Hernández,
Hill, Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma,
Mendoza, Mitchell, Monning, Nestande, Pan, Perea, V.
Manuel Pérez, Portantino, Skinner, Solorio, Swanson,
Torres, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Beth Gaines, Garrick, Gorell, Grove, Hagman, Harkey,
Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell,
Nielsen, Norby, Olsen, Silva, Smyth, Wagner
NO VOTE RECORDED: Davis, Fletcher, Halderman, Valadao
CTW:k 8/31/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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