BILL ANALYSIS Ó
AB 2325
Page 1
ASSEMBLY THIRD READING
AB 2325 (John A. Pérez)
As Introduced February 21, 2014
Majority vote
HEALTH 13-6 PUBLIC EMPLOYEES 5-1
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|Ayes:|Pan, Ammiano, Holden, |Ayes:|Bonta, Jones-Sawyer, |
| |Bonilla, Bonta, Chesbro, | |Rendon, |
| |Gomez, Gonzalez, Roger | |Ridley-Thomas, Wieckowski |
| |Hernández, Nazarian, | | |
| |Ridley-Thomas, | | |
| |Wieckowski, Eggman | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Maienschein, Chávez, |Nays:|Allen |
| |Mansoor, Nestande, | | |
| |Patterson, Wagner | | |
| | | | |
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APPROPRIATIONS 12-5
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|Ayes:|Gatto, Bocanegra, |
| |Bradford, |
| |Ian Calderon, Campos, |
| |Eggman, Gomez, Holden, |
| |Pan, Quirk, |
| |Ridley-Thomas, Weber |
| | |
|-----+--------------------------|
|Nays:|Bigelow, Donnelly, Jones, |
| |Linder, Wagner |
| | |
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SUMMARY : Requires the California Department of Health Care
Services (DHCS) to establish the Medi-Cal Patient-Centered
Communication Program, called CommuniCal, to provide and
reimburse for medical interpretation services to Medi-Cal
beneficiaries who are limited English proficient (LEP).
Establishes a certification process and registry of CommuniCal
interpreters at DHCS and grants CommuniCal interpreters
collective bargaining rights with the state. Specifically, this
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bill :
Creation and Administration of CommuniCal
1)Requires DHCS to establish the CommuniCal program to provide
and reimburse for certified medical interpretation services to
LEP Medi-Cal enrollees and requires, beginning July 1, 2015,
CommuniCal to offer medical interpretation services to
Medi-Cal providers provide services on either a
fee-for-service or managed care basis.
2)Permits a health care provider and other entities entering
into a Medi-Cal managed care contract with the state to
utilize CommuniCal to provide medical interpreter services to
Medi-Cal beneficiaries.
3)Requires all contracts between Medi-Cal managed care
organizations and their subcontractors to include provisions
describing access to CommuniCal medical interpreter services.
4)Requires DHCS to pursue all available sources of federal
funding to establish and operate CommuniCal and to seek any
federal approvals necessary to implement this article.
5)Requires CommuniCal to include in-person, telephonic, and
video medical interpretation services by a CommuniCal
interpreter.
6)Requires a Community Advisory Committee (CAC) be established
with representative stakeholders to make recommendations on
interpreter certification and services and to assist with
developing standards and requirements.
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7)Provides, whenever possible, in-person interpreter services to
be the preferred mode of interpretation in specified
instances.
8)Requires CommuniCal to be administered by a patient-centered
communication broker and requires DHCS to create and
administer a competitive request for proposals for the
communication broker who will administer the program.
Requires DHCS to make all applicable Medi-Cal reporting
requirements known to the broker and be responsible for the
broker's compliance with these requirements.
9)Allows interpreters certified or authorized under the
requirements contained in this bill can participate in
CommuniCal.
10)Provides that for the purposes of the CommuniCal program,
interpreters are independent contractors of the state and are
not employees of the broker, health care providers, or
consumers.
11)Establishes the base reimbursement rate for CommuniCal
interpreters to be subject to collective bargaining. Allows
reimbursement to be adjusted, in consultation with the CAC,
for factors such as geography, language spoken, availability
of interpreters, level of certification, travel time, or other
factors.
12)Requires DHCS to issue guidance, in consultation with the
CAC, on the administration of the CommuniCal program to ensure
compliance with the provisions of this bill and all applicable
state and federal laws by all contractors and subcontractors
of the program.
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13)Establishes the CommuniCal Program Fund (Fund) in the State
Treasury and requires any interest and dividends earned by the
Fund be retained in the Fund for specified purposes. Provides
that moneys in the Fund are to be used solely for the
CommuniCal program.
Certification and Registration of CommuniCal Medical
Interpreters
1)Provides that DHCS shall serve as the CommuniCal interpreter
certifying body, and requires DHCS, as the certifying body to
develop, monitor and evaluate interpreter competency,
qualifications, training, certification, and continuing
education requirements for medical interpreters and approve an
examination and certification process, in consultation with
CAC, to test and certify the competency of medical
interpreters by September 1, 2015.
2)Requires DHCS to maintain a list of authorized CommuniCal
interpreters called the CommuniCal Medical Interpreter
Registry (Registry).
3)Requires that, as a condition of certification, an interpreter
must complete an examination or be certified, as specified,
and upon meeting the examination or certification requirements
the interpreter must be certified as a CommuniCal Certified
Medical Interpreter (CCMI) and listed on the Registry.
4)Requires DHCS to authorize CommuniCal services to be provided
by an interpreter of less common languages or languages for
which a CCMI examination has not been created, and requires
DHCS to establish a test, in consultation with CAC.
5)Requires, by July 1, 2015, an interpreter to be CCMI certified
or authorized by DHCS to provide CommuniCal services.
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6)Permits DHCS, in order to meet anticipated demand, to
authorize an interpreter to provide CommuniCal services prior
to becoming certified if the interpreter meets all of the
following specified requirements regarding age, education and
linguistic proficiency.
7)Specifies that an individual authorized under the provisional
requirements, who does not subsequently become certified or
receive permanent authorization by January 1, 2017, is no
longer authorized to provide CommuniCal services.
8)Requires the certifying body to establish and charge fees, not
to exceed the reasonable costs, for applicants to take an
applicable exam. Requires a single fee for certification,
authorization, and listing on the Registry that does not
exceed the reasonable costs.
9)Requires CommuniCal interpreters to pay a Registry and
certification or authorization fee, by July 1 of each year, in
order to remain on the Registry.
10)Requires DHCS to establish, maintain, and publish annually an
updated Registry of CommuniCal interpreters and permits DHCS
to remove the name of a person from the Registry if the person
is deceased, notifies DHCS that they are unable to work, does
not submit an authorization or renewal fee, or fails to meet
the quality standards and medical certification requirements.
11)Waives, for the 2014-15 fiscal year only, the fee for
certification and listing on the Registry.
12)Requires DHCS to adopt quality standards and medical
interpretation certification requirements through regulations,
which address maintaining patient confidentiality and
familiarity or experience working with medical terminology,
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testing requirements, and languages where standards permit
interpret certification.
13)Requires the exclusive representative of CommuniCal
interpreters, the CAC, and a nonprofit organization to partner
to create and administer a training program for medical
interpreters, in order to prepare interpreters for exams or
other certification standards established for languages of
lesser diffusion and to provide continuing education for those
CommuniCal interpreters placed on the registry.
14)Specifies that, unless otherwise specified, the relationship
of CommuniCal interpreters to all parties and recipients of
service is one of independent contractor.
Collective Bargaining for CommuniCal Certified Medical
Interpreters
1)Authorizes CommuniCal interpreters to be represented by a
labor organization for the purposes of collective bargaining.
Applies the state action antitrust exemption and state and
federal antitrust laws to the activities of CommuniCal
interpreters and their exclusive representatives.
2)Requires CommuniCal interpreters to have the right to be
represented by an exclusive labor organization of their own
choosing for the purpose of collective bargaining with the
state of California on matters of mutual concern.
3)Requires the appropriate bargaining unit for CommuniCal
interpreters to be a statewide unit of eligible CommuniCal
interpreters.
4)Provides that CommuniCal interpreters are not public employees
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and that this bill does not establish an employer-employee
relationship between CommuniCal interpreters and the state or
patient-centered communication brokers for any purpose.
5)Requires DHCS to furnish, upon request by a labor organization
that is signed by 20% of CommuniCal interpreters, a list of
all CommuniCal interpreters including full names, telephone
numbers, e-mail addresses, and mailing or home address to the
labor organization within five days of the request.
6)Requires the Public Employment Relations Board (PERB), upon
application by petition, authorization cards, or union
membership cards of a labor organization showing that a
majority of CommuniCal interpreters in the state desire to be
represented exclusively by that labor organization, to certify
and grant exclusive representation to the labor organization.
Requires, if less than a majority but at least 30% of
CommuniCal interpreters desire to be represented exclusively
by that organization, the matter must be set for a mail ballot
election.
7)Requires PERB to accept, review, and certify all valid
applications submitted pursuant to the above requirements.
Provides that if a PERB regulation or rule conflicts with this
section, this section shall control.
8)Establishes requirements for a pre-election conference within
10 days of receipt of an adequate petition or authorization
cards. Requires the labor organization and the state to
engage in a good faith effort to reach a consent election
agreement, as specified. Specifies that Department of Human
Resources (CalHR) and DHCS will represent the state.
9)Prohibits other labor organizations from being allowed to
intervene in an election unless the intervening labor
organization shows at least 30% of the CommuniCal interpreters
desire to be represented exclusively by the intervening labor
organization and requires PERB to initiate a mail ballot
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election.
10)Requires PERB to determine all issues or matters in dispute.
Requires the determination and a directed election order or
consent election agreement between the labor organization and
the state to be made within seven days of the conference.
11)Requires PERB to initiate a mail ballot election within 10
days of the execution of a directed election order or consent
election agreement. Provides that the proposition receiving
the votes of a majority of all valid votes cast shall win the
election and if no option receives an absolute majority vote
of all valid votes cast, requires a runoff vote between the
two options receiving the highest number of votes to occur
within seven days.
12)Requires a pre-election meeting between the labor
organization and the state 30 minutes prior to the mailing of
ballots for the purpose of resolving any final issues.
13)Requires PERB to validate the ballots against the list of
CommuniCal interpreters provided by DHCS.
14)Requires discussions and collective bargaining between the
certified labor organization and the state and its designated
agents to commence within 30 days upon certification and at
any time thereafter upon request of the labor organization.
15)Provides that an agreement resulting from collective
bargaining be legally binding, reduced to writing, and
presented to the appropriate governing body in the form of a
binding agreement, resolution, bill, law, or other form
required for adoption.
16)Prohibits anything in this bill from affecting the right of a
CommuniCal interpreter to authorize dues or a service fee
deduction from his or her reimbursement, provides for the
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deduction of dues or services fees, fair share services fees,
and transmittal to the treasurer of the labor organization,
and requires that such fees and dues shall continue in effect
as long as the labor organization is the recognized
representative.
17)Requires discussions and collective bargaining between the
certified labor organization and the state and its designated
agents, CalHR and DHCS, to commence within 30 days upon
certification and at any time thereafter upon request of the
labor organization.
18)Requires the state to meet and collectively bargain in good
faith, as defined. Prohibits the state from interfering with,
intimidating, restraining, coercing, or discriminating against
CommuniCal and requires a complaint alleging a violation of
this provision to be processed as an unfair practice charge.
19)Prohibits the state from encouraging or discouraging
membership in a labor organization, or discriminating against
any CommuniCal interpreter.
20)Permits the state to adopt reasonable rules and regulations
after consultation in good faith with representatives of a
certified labor organization for administration of CommuniCal
interpreter labor relations under this bill.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)One-time administrative costs in the range of $1 million
(General Fund and federal funds) to DHCS to seek federal
approvals, create system protocols, develop an information
technology infrastructure, design communications, and
guidance, promulgate regulations, and other initial program
development activities.
2)An exact estimate of the cost of language services is
difficult given a lack of accurate projections about how, by
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whom, and with what frequency a centralized system would be
used. Assuming 1.5 million LEP individuals receive one
additional office visit annually with interpretive services
provided through this program at a cost of $20 per visit,
additional costs would be about $30 million annually. This
overall cost increase would be experienced as direct costs in
the case of fee-for-service Medi-Cal, and cost pressure on
rates in the case of Medi-Cal managed care. The majority of
enrollees are now in managed care plans.
3)Medi-Cal costs would be at a 50% General Fund, 50% federal
funds matching rate except for:
a) Costs associated with services used by children, subject
to federal approval. Pursuant to the Children's Health
Insurance Program Reauthorization Act of 2010 and
subsequent federal guidance, language services for children
can be claimed at a 25% General Fund, 75% federal funds
matching rate.
b) Costs associated with individuals found newly eligible
for Medi-Cal pursuant to the expansion related to the
Patient Protection and Affordable Care Act and subsequent
2013 state legislation, which expanded Medi-Cal to
childless adults. Costs for these individuals are funded
at a rate of 100% federal funds until 2017, after which the
federal matching rate gradually decreases to 90% for 2020
and beyond.
1)Improved access to high-quality interpretive services is
likely to improve access to care and increase overall medical
costs to the Medi-Cal program for LEP beneficiaries. It would
also likely result in some offsetting cost savings associated
with the provision of higher-quality care and fewer medical
errors. The magnitude of savings as compared to costs is
unknown, but evidence suggests that, on balance, the Medi-Cal
program would experience increased medical costs if
centralized, high-quality interpretive services were
available.
2)Potential one-time General Fund costs of $140,000 and ongoing
annual costs of $50,000 per year to PERB.
3)Periodic General Fund costs up to $1 million for negotiating a
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memorandum of understanding with the established bargaining
unit and overseeing the implementation by CalHR.
COMMENTS : According to the author, more than 40% of
Californians speak a language other than English at home.
Almost 7 million Californians are estimated to speak English
"less than very well." Research finds language barriers
contribute to inadequate patient evaluation and diagnosis, lack
of appropriate and/or timely treatment, or other medical errors
that jeopardize patient safety and lead to unnecessary
procedures. The author notes, language assistance in medical
settings is often provided by untrained staff or by family
members or friends.
According to the US Census Bureau 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.
Title VI of the Civil Rights Act of 1964 provides 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. The federal Department of Health
and Human Services (HHS) Office for Civil Rights (OCR) has
responsibility for enforcing the Civil Rights Act for HHS as
well as 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.
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 Centers for
Medicare and Medicaid Services states there is no set solution
for Title VI compliance with respect to LEP persons, and what
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constitutes reasonable steps for large providers may not be
reasonable where small providers are concerned.
The American Federation of State, County and Municipal Employees
argue that communication is critical to quality of care and
cultural competency in our state's Medicaid program. With the
expansion of Medi-Cal and the exchange market under the federal
Patient Protection and Affordable Care Act, the state has an
opportunity to create a program that will allow patients and
providers to communicate with each other. The United Domestic
Workers state by expanding patient access to medical
interpreters the state will improve the quality and coordination
of care in our state's Medi-Cal program. The Western Center on
Law and Poverty supports this bill because the implementation of
the CommuniCal program would create a system that provides
high-quality language assistance to beneficiaries.
The California Healthcare Interpreting Association supports the
bill because it sets minimum standards for healthcare
interpreting and provides federal funding streams and payment
mechanisms for providing language assistance in Medi-Cal. They
are concerned the bill emphasizes in-person interpreting, an
approach they argue may be unworkable at certain settings based
on frequency of need and the language required. In addition,
the association argues staff interpreters may be more
cost-effective than hiring outside contractors.
The National Right to Work Committee argues this bill will grant
union bosses monopoly bargaining powers over virtually all
interpreters operating under the program, stripping every one of
these individuals of the fundamental right to negotiate for
themselves. According to the committee, if this bill passes,
independent contractors would be forced to accept union boss
representation and would then have union dues stripped from
their compensation and transferred straight to the treasury of
the big labor representative they didn't want.
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Analysis Prepared by : Roger Dunstan / HEALTH / (916) 319-2097
FN: 0003786