BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2325
Author: John A. Pérez (D), et al.
Amended: 6/12/14 in Senate
Vote: 21
SENATE HEALTH COMMITTEE : 6-2, 6/18/14
AYES: Hernandez, Beall, DeSaulnier, Evans, Monning, Wolk
NOES: Morrell, Nielsen
NO VOTE RECORDED: De León
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De León, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 53-25, 5/28/14 - See last page for vote
SUBJECT : Medi-Cal: CommuniCal
SOURCE : Author
DIGEST : This bill requires the 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 have limited English proficiency (LEP),
establishes a certification process and registry of CommuniCal
interpreters at DHCS, and grants CommuniCal interpreters
collective bargaining rights with the state.
ANALYSIS :
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Existing federal law:
1.Provides increased federal matching funding for translation
and interpretation services provided in connection with the
enrollment, retention, and use of services under Medicaid
(Medi-Cal in California) and the Children's Health Insurance
Program (CHIP was previously known as the Healthy Families
Program in California; these children are now enrolled in
Medi-Cal).
2.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.
Existing state law:
1.Establishes the Medi-Cal program, which is administered by
DHCS, under which qualified low-income individuals receive
health care services.
2.Requires commercial health plans to assess their members
language preference and provide interpretation and translation
services in threshold languages.
3.Requires hospitals to provide language services, interpreters,
or bilingual staff, under specified circumstances, and to
identify and record patients' primary languages in hospital
records.
4.Requires state and local agencies providing services to a
substantial number of non-English speaking people to provide
bilingual services.
This 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.
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2.Requires CommuniCal to offer medical interpretation services
to Medi-Cal providers who are providing services on either a
fee-for-service or managed care basis, commencing July 1,
2015.
3.Requires DHCS to adopt policies, in consultation with the
Community Advisory Committee (CAC), to prohibit duplicate
payments to CommuniCal interpreters and Medi-Cal managed care
plans (MCP) for services provided to Medi-Cal MCP enrollees.
4.Permits a health care provider, an entity entering into a
Medi-Cal provider agreement, or a Medi-Cal managed care
contract with the state to utilize CommuniCal to provide
medical interpreter services to Medi-Cal beneficiaries.
5.Requires all contracts between Medi-Cal managed care
organizations and their subcontractors to include provisions
describing access to CommuniCal medical interpreter services.
6.Requires DHCS to pursue all available sources of federal
funding to establish and operate CommuniCal and to seek any
federal approvals necessary to implement specified provisions
of this bill, in consultation with CAC.
7.Requires CommuniCal to include in-person, telephonic, and
video medical interpretation services by a CommuniCal
interpreter.
8.Requires that in-person interpreter services be the preferred
mode of interpretation in the instances whenever possible.
9.Requires CommuniCal to be administered by a patient-centered
communication broker.
10.Requires DHCS to create and administer a competitive Request
for Proposals for the communication broker, and requires the
broker to be responsible for the specified duties.
11.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.
12.Requires that only interpreters certified or authorized by
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DHCS under this bill as CommuniCal interpreters are allowed to
participate in CommuniCal.
13.Permits, unless otherwise prohibited, CommuniCal interpreters
to advertise, promote, or otherwise communicate availability
for services to the general public and provide office space,
equipment, support services, forms, supplies, and business
cards.
14.Requires the base reimbursement rate for CommuniCal
interpreters to be subject to collective bargaining. Permits
reimbursement to be adjusted for factors, including but not
limited to, geography, language spoken, availability of
interpreters, level of certification, travel time, or other
factors, in consultation with the CAC.
15.Requires DHCS to issue guidance on the administration of the
CommuniCal program to ensure compliance with specified
provisions of this bill and all applicable state and federal
laws by all contractors and subcontractors of the program, in
consultation with the CAC.
16.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. Requires
that monies in the Fund are to be used solely to fund the
CommuniCal program.
Certification and Registration of CommuniCal Medical
Interpreters
1.Requires that DHCS serve as the CommuniCal interpreter
certifying body.
2.Requires DHCS to establish an alternate certification process,
beginning July 1, 2015, that authorizes CommuniCal services to
be provided by an interpreter of languages of lesser diffusion
or language for which a CommuniCal certified medical
interpreter (CCMI) examination has not been created. Requires
DHCS, in consultation with CAC, to authorize an interpreter to
provide CommuniCal services if the interpreter passes a
screening test, as specified.
3.Requires, by July 1, 2015, an interpreter to be CCMI certified
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or authorized to provide CommuniCal services through the
alternate certification process, as specified, in order to
provide CommuniCal services.
4.Requires DHCS to maintain a list of authorized CommuniCal
interpreters called the CommuniCal Medical Interpreter
Registry.
5.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
specified requirements.
6.Specifies that an individual authorized under the provisional
requirements, who does not subsequently become certified or
receive permanent authorization by December 31, 2017, is no
longer authorized to provide CommuniCal services.
7.Requires the certifying body to establish and charge fees, not
to exceed the reasonable costs, for applicants to take an
applicable exam.
8.Requires CommuniCal interpreters to pay a registry and
certification or authorization fee not to exceed the
reasonable costs, by July 1 of each year, in order to remain
on the registry.
9.Requires DHCS to establish, maintain, administer and publish
annually an updated registry of CommuniCal interpreters.
10.Requires DHCS to adopt quality standards and medical
interpretation certification requirements through regulations,
to include, but not be limited to, maintaining patient
confidentiality and familiarity or experience working with
medical terminology and determine the testing requirements for
certification in each language, and create a list of those
languages where standards permit registration of the
interpreter.
11.Requires a CAC to be established to make recommendations on
interpreter certification and services and to assist with
developing standards and requirements.
12.Requires the CAC to include stakeholders that reflect the
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diversity of the state in terms of race, ethnicity, gender,
sexual orientation, immigration status, and geography,
including representatives from government, health care
providers, LEP consumers, health care or language access
advocates, medical or health care interpreters, and any other
individual DHCS deems appropriate.
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.Requires only CommuniCal interpreters be represented by a
labor organization for the purposes of collective bargaining
as established by this bill.
2.Requires CommuniCal interpreters to have the right to form,
join, and participate in the activities of a labor
organization of their own choosing for purpose of
representation.
3.Applies the state action antitrust exemption and state and
federal antitrust laws to the activities of CommuniCal
interpreters and their exclusive representatives.
4.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, as
specified.
5.Requires the appropriate bargaining unit for CommuniCal
interpreters to be a statewide unit of eligible CommuniCal
interpreters.
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6.Provides that CommuniCal interpreters are not public employees
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.
7.Requires DHCS to furnish, upon request by a labor organization
that is signed by 20% of CommuniCal interpreters, a list of
all CommuniCal interpreters, as specified.
8.Requires the Public Employment Relations Board (PERB), 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 labor organization, the matter to be set
for a mail ballot election.
9.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.
10.Requires any agreement resulting from collective bargaining
to be legally binding, committed to writing, and presented to
the appropriate administrative, legislative or other governing
body in the form of a binding agreement, resolution, bill,
law, or other form required for adoption.
11.Prohibits anything in this bill from affecting the right of a
CommuniCal interpreter to authorize dues or a service fee
deduction from his/her reimbursement, provides for the
deduction of dues, services fees or fair share service fees,
and transmittal to the treasurer of the labor organization,
and requires that such fees and dues to continue in effect as
long as the labor organization is the recognized
representative.
12.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.
13.Requires that execution of a valid written agreement between
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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.
14.Prohibits the state from encouraging or discouraging
membership in a labor organization, or discriminating against
any CommuniCal interpreter.
15.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.
16.Provides, in the event of a judicial declaration declaring
any provision invalid, the remaining provisions remain in
force.
Background
Enhanced federal matching funds for translation and
interpretation services . The Children's Health Insurance
Program Reauthorization Act (CHIPRA) contains provisions that
affect both the Children's Health Insurance Program (CHIP) and
Medicaid. In July 2010, the Centers for Medicare and Medicaid
Services provided guidance on the implementation 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.
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 Federal Medical
Assistance Percentages (FMAP) plus 5%, whichever is higher (in
California, it would be 75%). However, the increased federal
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match is only available for eligible expenditures claimed for
administration of the Medicaid or CHIP plan, and 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 OCR has the authority to investigate
complaints related to linguistic barriers, to initiate its own
reviews, and to withhold federal funds for noncompliance.
Data on language in California . According to the U.S. 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.
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.
Prior Legislation
AB 1263 (Pérez, 2013) was similar to this bill. AB 1263 was
vetoed by Governor Brown. In his veto message, Governor Brown
stated "California has embarked on an unprecedented expansion to
add more than a million people to our Medi-Cal program. Given
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the challenges and the many unknowns the state faces in this
endeavor, I don't believe it would be wise to introduce yet
another complex element."
AB 2392 (Pérez, 2012) would have required DHCS to establish the
CommuniCal program to provide and reimburse for certified
medical interpretation services provided to Medi-Cal
beneficiaries who are LEP. AB 2392 would have established the
State Personnel Board as the certifying body for the CCMI, and
would have required CommuniCal to be administered by a
patient-centered communication broker that is a third-party
administrator. AB 2392 was moved to the Assembly inactive file
on concurrence.
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 Department of
Insurance to adopt regulations to ensure enrollees have access
to language assistance in obtaining health care services.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
One-time costs of $1.4 million to develop program guidelines,
seek necessary federal approvals, and develop billing systems
(50% General Fund, 50% federal funds).
One-time costs of about $50,000 to develop regulations
relating to collective bargaining of translators by PERB
(General Fund).
One-time costs of about $90,000 and ongoing costs of about
$50,000 per year to oversee an election by translators to
choose a collective bargaining agent by PERB (General Fund).
Periodic costs up to $1 million for negotiating a memorandum
of understanding with the established bargaining unit and
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overseeing the implementation by the Department of Human
Resources (General Fund).
Ongoing costs of about $37 million per year to provide
translation services in fee-for-service Medi-Cal, based on
estimates of the existing Medi-Cal fee-for-service population
with LEP (General Fund and federal funds).
Unknown costs in Medi-Cal managed care (General Fund and
federal funds). Under existing law, health plans are required
to provide interpretation services, including managed care
plans that contract with DHCS. It is unclear whether this
bill's requirement to provide "certified medical
interpretation services" at reimbursement rates subject to
collective bargaining will increase costs for translation
services, above the costs already being incurred. Similarly,
this bill requires in-person translation to be the preferred
method of communication in many instances. Under current
practice, many providers in the managed care system make use
of telephone interpretation services. To the extent that
providers switch to in-person translation services, costs are
likely to increase.
The federal financial participation rate for the costs above
may vary. Generally, the federal government pays for 50% of
Medi-Cal costs. However, the federal government pays an
increase reimbursement rate the former Health Families
population is 65%. Finally, for the Medi-Cal expansion
population, the federal government pays 100% of the cost,
declining to 90% by 2020. (Federal law allows for a 75% match
for certain costs of interpretation that are considered
administrative costs. However, DHCS indicates that the
provision of interpretation services under this bill will be
considered Medi-Cal benefits and will be subject to the normal
federal match.)
SUPPORT : (Verified 8/15/14)
AFSCME, AFL-CIO
American Academy of Pediatrics, California
California Communities United Institute
California Medical Association
California Pan-Ethnic Health Network
City and County of San Francisco
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Congress of California Seniors
Health Access California
National Association of Social Workers, California Chapter
Planned Parenthood Affiliates of California
United Domestic Workers of America, AFSCME Local 3930
Western Center on Law and Poverty
OPPOSITION : (Verified 8/15/14)
California Department of Health Care Services
National Right to Work Committee
ARGUMENTS IN SUPPORT : The California Pan-Ethnic Health
Network writes that California's population is one of the most
diverse in the country with over 100 different languages spoken
and an estimated 6 to 7 million LEP Californians. Barriers to
communication in the health care setting can result in increased
risk of misdiagnoses and misunderstandings, resulting in lower
quality care and reduced adherence to medication. AFSCME states
in support that communication is critical to quality of care and
cultural competency in our state's Medicaid program. AFSCME
believes that with the expansion of Medi-Cal and Covered
California under the Affordable Care Act, the state has a clear
opportunity to create an interpreters program that allows
patients and providers to clearly communicate with each other.
ARGUMENTS IN OPPOSITION : The National Right to Work Committee
(NRWC) 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. NRWC argues
these individuals would be subject to a so-called "card check"
recognition and could be forced under union control by the
authorization of merely 30% of CCMIs in the state. If this bill
passes, NRWC argues 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.
DHCS is opposed to this bill stating that is it unnecessary
because LEP Medi-Cal beneficiaries currently have reliable
access to language interpretation services. DHCS claims that
this bill creates an administratively costly system for the
provision of medical interpreter services that duplicates
current services.
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ASSEMBLY FLOOR : 53-25, 5/28/14
AYES: Achadjian, Alejo, Ammiano, Bloom, Bocanegra, Bonilla,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman, Fong,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger
Hernández, Holden, Jones-Sawyer, Lowenthal, Medina, Mullin,
Muratsuchi, Nazarian, Pan, Perea, John A. Pérez, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez,
Salas, Skinner, Stone, Ting, Weber, Wieckowski, Williams,
Yamada, Atkins
NOES: Allen, Bigelow, Chávez, Conway, Dahle, Donnelly, Fox,
Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones, Levine,
Linder, Logue, Maienschein, Mansoor, Melendez, Nestande,
Olsen, Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Frazier, Vacancy
JL:e 8/16/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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