BILL ANALYSIS �
AB 2264
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Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 2264 (Levine) - As Introduced: February 21, 2014
SUBJECT : Clinics: licensure and regulations: exemptions.
SUMMARY : This bill expands the exemption from licensing by the
Department of Public Health (DPH) for clinics operated by a
federally recognized tribe or tribal organization.
Specifically, this bill :
1)Exempts clinics operated by a tribe or tribal organization,
regardless if the clinic is located on tribal land, from
obtaining a license from DPH.
2)Requires the exempted clinic to operate under a contract with
the United States pursuant to the Indian Self Determination
and Education Assistance Act.
EXISTING STATE LAW :
1)Requires clinics to be licensed by DPH. Provides for
exemptions from these licensing requirements for certain types
of clinics. Some of the types of clinics that qualify for the
exemption include federally operated clinics, local government
primary care clinics, clinics affiliated with an institution
of higher learnings, clinics conducted as outpatient
departments of hospitals, and community or free clinics.
2)Exempts from this licensing requirement clinics operated by a
federally recognized Indian tribe or tribal organization on
land recognized as tribal land by the federal government.
3)Authorizes DPH to take various types of enforcement actions
against a primary care clinic that has violated state law or
regulation, including imposing fines, sanctions, civil or
criminal penalties, and suspension or revocation of the
clinic's license.
4)Requires a provider to apply to the Department of Health Care
Services (DHCS) to obtain approval for participating in the
Medi-Cal program and to apply and obtain DHCS approval for
enrollment. Specifies the extensive application requirements.
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5)Requires clinics to meet specified standards and be approved
for operation by DPH prior to obtaining a Medi-Cal provider
number or providing services. DPH is delegated this function
by the federal Centers for Medicare and Medicaid Services.
6)Grants DHCS various enforcement powers over enrolled providers
and the enrollment process including instituting a moratorium
on enrollment, suspending providers from the program,
deactivating of the provider number, auditing, and carrying
out unannounced inspections.
7)Creates within DPH the Indian Health Program whose mission is
to improve the health status of American Indians living in
urban, rural, and reservation or rancheria communities in
California.
EXISTING FEDERAL LAW allows the federal government to contract
with federally recognized tribes for health services within the
California contract health service delivery area. Excludes from
the California area the Counties of 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.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill
creates a single licensing standard for tribally operated
clinics, by clarifying that the exemption from clinic
licensing in existing law for clinics operated by federally
recognized tribes applies to clinics that are not located
within Indian country. The author notes when tribally
operated health programs operate a clinic on federal Indian
trust land or in affiliation with an institution of higher
learning they are exempt from licensure. These exemptions are
found in Health and Safety Code sections 1206. However if a
clinic does not have an affiliation with an institution of
higher learning and is not within Indian Country then it must
be licensed. According to the author, this can create a
scenario where a health program operating multiple clinics may
have very different licensing requirements and cause an undue
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organizational burden for a clinic that is dedicated to health
delivery.
According to the author, this bill will not diminish the
quality of care provided by tribal health programs. The
author notes that clinics that are exempt from licensure must
still be certified under the same standards as Medi-Cal
providers under existing state regulations. The author also
states tribal health programs are one of the few Medi-Cal
providers in their areas, and the bill would result in more
services becoming available to Medi-Cal clients.
2)BACKGROUND . There are approximately 1,000 primary care
clinics currently licensed in California. In order to obtain
a license, a primary care clinic must submit an application
and fee to DPH, and pass an initial licensure survey conducted
by DPH. Upon receipt of a completed application for a clinic
license, DPH has up to 100 days to either grant or deny the
license. Existing law requires DPH to issue a provisional
license, good for six months from the date of issuance, to a
clinic that has not been previously licensed. DPH is required
to inspect the clinic within 30 days prior to the termination
of the provisional license, and, if the clinic meets all
licensure requirements, issue a regular license. Clinics that
do not meet the requirements for licensure, but make progress
toward meeting the requirements, may have their provisional
license renewed by DPH for another six months.
Even if a clinic is exempt from state licensure, it may have
to follow the same requirements if it applies to be enrolled
as a Medi-Cal provider. DHCS has an extensive application
process for any applicant, but specifically for exempt
clinics. DPH inspects the clinics and ensures they meet the
same requirements as licensed clinics.
3)TRIBAL HEALTH SERVICES . The federal government has a major
role in providing health care services to American Indians.
The federal government's obligation began with the terms of
many treaties where the federal government promised health
care as one of the conditions of these treaties. Over time
the obligation has endured, but the means for carrying it out
has undergone significant change. A landmark change occurred
when the Snyder Act was passed in 1921 which better defined
the federal responsibility, consolidated various programs, and
assigned responsibility to the Bureau of Indian Affairs.
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Their responsibilities were later transferred to the
forerunner of today's Department of Health and Human Services
and administered by the newly created Indian Health Service
(IHS). Another significant change came with the enactment in
1975 of the Indian Self-Determination and Education Act
(Public Law 93-638). Enactment of this law marked the
beginning of a period when the tribes began taking more
responsibility and a direct role in providing health services.
Health services may still be provided by the IHS but as an
alternative they can be provided by a contracting tribe, a
program which has grown markedly over the years.
The IHS provides health services to members of federally
recognized tribes and other eligible Indians, as specified.
The health services have been described as universal
eligibility but limited availability, a further factor in the
tribes taking more responsibility for the direct provision of
services. The IHS oversees health programs over portions of
the state. By federal law, the area is limited to the 38
counties with American Indian trust lands, generally meaning a
reservation or rancheria. Within the included counties there
is a service population of approximately 130,000 eligible
American Indians. The IHS divides their service area in
California into smaller administrative units called services
units. These services units have responsibility for planning,
managing and evaluating the health programs in its
jurisdiction. They are focused on a specific geographic area
and are usually centered on a single federal reservation. It
is within these services units that a tribe or consortium of
tribes can operate clinics under contract with the federal
government.
Although the clinics are established to provide services to
specified American Indians they are open to all. The
proportion of non-Indians using these clinics varies
dramatically. In some smaller rural areas without many health
care facilities, the proportion of non-Indians can be quite
significant accounting for about half the patients seen. In
other clinics, Indians comprise the overwhelming majority.
4)GREENVILLE RANCHERIA . The Greenville Rancheria Tribal Health
program administers several clinics in Greenville and Red
Bluff. Two of these clinics have exemptions; one is on tribal
land and another is exempt because it is affiliated with an
institution of higher learning. A third clinic is
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administered by the tribe which reports it operates all three
clinics in a similar fashion, but it is on land owned by the
tribe. The Greenville Rancheria argued the third clinic
should also be exempt because it is on land owned by the
tribe; the state disagreed stating although the land was owned
by the tribe, the land in question is not federal trust land
such as a reservation or Rancheria and the statute is limited
to only those lands. This difference of opinion raises a
question about the interpretation of existing law.
5)SUPPORT . The California Rural Indian Health Board, a tribal
organization operating 11 clinics for 30 tribal governments,
argues this bill will make a needed change by providing a
single, standard exemption to the requirement for clinic
licensure for tribal health program and have no impact on the
requirements under which clinics operate and will expedite
opening clinics that service Medi-Cal clients. They note that
a tribal health program with more than one clinic site may
have each site fitting a different licensing or exemption
category, resulting in administrative confusion for the health
program. The California Rural Indian Health Board also
asserts this bill will not change the quality of care provided
by the tribal health programs because the exempt clinics must
still be certified as Medi-Cal providers. The licensing
standards and the certification standards are the same and are
found in California regulations. Other tribes and tribal
consortiums support this bill because it will allow tribal
health clinics to have all of their sites of services be
similarly categorized as exempt from licensure. They also
note that state law creates confusion because of the state's
interpretation of "lands owned by the tribe" which the state
interprets to mean federal trust lands whereas federal law
recognizes lands owned by a tribe, regardless of the trust
status.
6)POSSIBLE AMENDMENTS. Given the possible confusion about the
existing exemption, it could be clarified to refer only to
federal trust lands, principally reservations, and rancherias,
not any other lands owned by a tribe. That amendment taken
alone would be contradictory to what the author is attempting
to do as it would be seen as narrowing the current exemption.
Given the quite extensive government to government
relationship between the tribes and the State of California,
the Committee may want to pursue an alternative path to
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exemption. Existing law generally exempts clinics owned or
operated by government entities. There is a blanket exemption
for clinics operated by the state and federal governments and
an exemption for primary care clinics operated by local
governments. Given the extensive government to government
relationship between the state and tribes, the Committee may
want to consider if this alternative exemption is more
appropriate, if it wants to expand the existing exemption.
REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Indian Health Board, Inc.
Chapa-De Indian Health Program, Inc.
Consolidated Tribal Health Project, Inc.
Greenville Rancheria
Pit River Health Service, Inc.
Redding Rancheria Tribal Government
United Indian Health Services, Inc.
Sonoma County Indian Health Project
Warner Mountain Indian Health Project
Opposition
None received
Analysis Prepared by : Roger Dunstan / HEALTH / (916) 319-2097