California: SB 863 Final Interpreter Services Rules Effective 8-13-2013

The following summary highlights the major changes in the final interpreter services rules that went into effect August 13, 2013, as well as relevant provisions of the Labor Code.

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Entitlement

When at the request of the employer, the employer's insurer, the Administrative Director, the Appeals Board, or a WCJ, an employee, who does not proficiently speak or understand the English language, submits to examination by a physician, the employee is entitled to the services of a qualified interpreter in accordance with conditions and a fee schedule prescribed by the Administrative Director. These services are to be provided by the employer. Lab. Code § 4600(f) [LC 4600]

If the injured employee cannot effectively communicate with his or her treating physician because he or she cannot proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter during medical treatment appointments. To be a qualified interpreter for purposes of medical treatment appointments, an interpreter is not required to meet the requirements of the preceding paragraph, but must meet any requirements established by rule by the Administrative Director that are substantially similar to the requirements set forth in Health & Safety Code § 1367.04. Lab. Code §§ 4600(g), 4620(d) [LC 4600, 4620]

If the employer or insurance carrier requests a deposition to be taken of an injured employee, or any person claiming benefits as a dependent of an injured employee, and if interpretation services are required because the injured employee or deponent does not proficiently speak or understand the English language, upon a request from either, the employer must pay for the services of a language interpreter certified or deemed certified. The fee to be paid by the employer must be in accordance with the fee schedule adopted by the Administrative Director and include any other deposition-related events as permitted by the Administrative Director. Lab. Code § 5710(b) [LC 5710]

It is the responsibility of any party producing a witness requiring an interpreter to arrange for the presence of a qualified interpreter. Lab. Code § 5811(b)(1) [LC 5811]; 8 Cal. Code Reg. § 9795.3(f)

The duty of an interpreter is to accurately and impartially translate oral communications and transliterate written materials, not to act as an agent or advocate. An interpreter must not disclose to any person who is not an immediate participant in the communications the content of the conversations or documents that the interpreter has interpreted or transliterated unless the disclosure is compelled by court order. An attempt by any party or attorney to obtain disclosure is a bad faith tactic that is subject to sanctions pursuant to Lab. Code § 5813. Lab. Code § 5811(b)(2) [LC 5811]

A qualified interpreter may render services during the following: Lab. Code § 5811(b)(2) [LC 5811]

1. A deposition.

2. An Appeals Board hearing.

3. A medical treatment appointment or medical-legal examination.

4. During those settings that the Administrative Director determines are reasonably necessary to ascertain the validity or extent of injury to an employee who does not proficiently speak or understand the English language.

For purposes of these requirements, “qualified interpreter” means a language interpreter certified, or deemed certified, pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Gov. Code § 68566. Lab. Code §§ 4600(f), 5811(b)(2) [LC 4600, 5811]

Hearings, Depositions, or Arbitrations

The notice of a hearing, deposition, or other setting must include a statement explaining the employee’s right to have an interpreter present if he or she does not proficiently speak or understand English. When a party is designated to serve notice, it is that party’s responsibility to include the statement in the notice. 8 Cal. Code Reg. § 9795.2

To qualify to be paid for interpreter services at a hearing, deposition or arbitration, the interpreter must be one of the following: 8 Cal. Code Reg. § 9795.1.5(a)

1. Certified, which means listed on the State Personnel Board webpage at http://jobs.spb.ca.gov/InterpreterListing/ or the California Courts webpage at http://courts.ca.gov/programs-interpreters.htm.

2. Provisionally certified, which means deemed qualified to perform interpreter services when a certified interpreter cannot be present, either:

a. By agreement of the parties, or

b. Based on a finding by the WCJ conducting a hearing that the interpreter is qualified to interpret at the hearing, or by the arbitrator conducting the arbitration that the interpreter is qualified to interpret at the arbitration. The finding of the judge or arbitrator and the basis for the finding must be set forth in the record of proceedings.

Medical Treatment Appointments or Medical-Legal Exams

To qualify to be paid for interpreter services at a medical treatment appointment or medical-legal exam, the interpreter must be certified, certified for medical treatment appointments or medical-legal exams, or provisionally certified, as follows: 8 Cal. Code Reg. § 9795.1.6(a)

1. Certified means listed on the State Personnel Board webpage at http://jobs.spb.ca.gov/InterpreterListing/ or the California Courts webpage at http://courts.ca.gov/programs-interpreters.htm; or

2. Certified for medical treatment appointments or medical-legal exams, which means either:

a. Passing the Certification Commission for Healthcare Interpreters (CCHI) exam evidenced by a CCHI certification/credential indicating that the interpreter passed the exam and specifying the language, if indicated. The certification procedure is set forth on the CCHI webpage at http://www.healthcareinterpretercertification.org/. The CCHI certification/credentials are valid for four years from the date when CCHI granted/issued the credential. Individuals who are granted a CCHI certification or credential must comply with the CCHI requirements to be recertified within this four-year period to maintain their certification/credential. Questions about an application may be sent by email to apply@healthcareinterpretercertification.org or to CCHI, 1725 I Street NW, Suite 300, Washington, DC, 20006 (866-969-6656); or

b. Passing the National Board of Certification for Medical Interpreters (National Board) exams evidenced by a National Board credential indicating that the interpreter passed the exams and specifying the language. The certification procedure is set forth on the National Board webpage at http://www.certifiedmedicalinterpreters.org/. The National Board certification is valid for five years from the date when National Board granted/issued the certification. Individuals who are granted a National Board certification must comply with the National Board requirements to be recertified within this five-year period to maintain their certification. Questions about an application may be sent by email to info@certifiedmedicalinterpreters.org or to National Board, P.O. Box 300, Stow, MA 01775 (1-765-633-2378).

3. Provisionally certified as an interpreter for purposes of medical treatment appointments or medical-legal exams, if either of the following is true:

a. If the claims administrator has given prior written consent to the interpreter who provides the services.

b. The injured worker requires interpreter services in a language other than Spanish, Tagalog, Arabic, Cantonese, Japanese, Korean, Portuguese, and Vietnamese, in which case the physician may use a provisionally certified interpreter if that fact is noted in the record of the medical evaluation.

Fees for Interpreter Services

Interpreter fees that are reasonably, actually, and necessarily incurred will be paid by the employer, provided they are in accordance with the fee schedule adopted by the Administrative Director. Lab. Code § 5811(b)(2) [LC 5811]

The Administrative Director has adopted a fee schedule for certified interpreter fees in accordance with this statute. See 8 Cal. Code Reg. § 9795.3. Upon request of the injured employee, the employer or insurance carrier is to pay for interpreter services. An employer is not be required to pay for the services of an interpreter who is not certified or is provisionally certified by the person conducting the medical treatment or examination unless either the employer consents in advance to the selection of the individual who provides the interpreting service or the injured worker requires interpreting service in a language other than the languages designated pursuant to Gov. Code § 11435.40. Lab. Code §§ 4600(g), 4620(d) [LC 4600, 4620]

Fees for services performed by a certified or provisionally certified interpreter, upon request of an employee who does not proficiently speak or understand the English language, must be paid by the claims administrator for any of the following events: 8 Cal. Code Reg. § 9795.3(a)

1. An examination by a physician to which an injured employee submits at the request of the claims administrator, the Administrative Director, or the Appeals Board.

2. A medical treatment appointment.

3. A comprehensive medical-legal evaluation as defined in 8 Cal. Code Reg. § 9793(c), a follow-up medical-legal evaluation as defined in 8 Cal. Code Reg. § 9795.3(f), or a supplemental medical-legal evaluation as defined in 8 Cal. Code Reg. § 9795.3(k), provided, however, that payment for interpreter’s fees by the claims administrator will not be required under this paragraph unless the medical report to which the services apply is compensable. Nothing in this paragraph, however, is to be construed to relieve the party who retains an interpreter from liability to pay the interpreter’s fees in the event the claims administrator is not liable.

4. A deposition of an injured employee or any person claiming benefits as a dependent of an injured employee, at the request of the claims administrator, including the following related events:

a. Preparation of the deponent immediately prior to the deposition.

b. Reading of a deposition to a deponent prior to signing.

c. Reading of prior volumes to a deponent in preparation for continuation of a deposition.

5. An Appeals Board hearing or arbitration.

6. A conference held by an information and assistance officer pursuant to Chapter 2.5 of Part 4 of Division 4 of the Labor Code to assist in resolving a dispute between an injured employee and a claims administrator.

7. Other similar settings determined by the Appeals Board to be reasonable and necessary to determine the validity and extent of injury to an employee.

The following fees for interpreter services provided by a certified or provisionally certified interpreter are presumed to be reasonable: 8 Cal. Code Reg. § 9795.3(b)

1. For an Appeal Board hearing, arbitration, or deposition: interpreter fees will be billed and paid at the greater of the following: (i) at the rate for one-half day or one full day [see 8 Cal. Code Reg. § 9795.1(b) (“full day” defined), (c) (“one-half day” defined)] as set forth in the Superior Court fee schedule for interpreters in the county where the service was provided; (ii) at the market rate [see 8 Cal. Code Reg. § 9795.1(e) (“market rate” defined)]. The interpreter must establish the market rate for the interpreter’s services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services. Services over eight hours must be paid at the rate of one-eighth the full day rate for each hour of service over eight hours.

2. For all other events listed under 8 Cal. Code Reg. § 9795.3(a), interpreter fees will be billed and paid at the rate of $11.25 per quarter hour or portion thereof, with a minimum payment of two hours, or the market rate, whichever is greater. Again, the interpreter must establish the market rate for the interpreter’s services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services.

3. The fee in items 1 and 2, immediately above, must include, when requested and adequately documented by the interpreter, payment for mileage and travel time [see 8 Cal. Code Reg. § 9795.1(d) (“travel time” defined)] when reasonable and necessary to provide the service, and when the distance between the interpreter’s place of business and the place where the service was rendered is over 25 miles. Travel time is not deemed reasonable and necessary when a qualified interpreter listed in the master listing for the county where the service is to be provided can be present to provide the service without the necessity of excessive travel.

a. Mileage will be paid at the minimum rate adopted by the Director of the Department of Personnel Administration pursuant to Gov. Code § 19820 for non-represented (excluded) employees at 2 Cal. Code Reg. § 599.631(a).

b. Travel time will be paid at the rate of $5.00 per quarter hour or portion thereof.

Unless notified of a cancellation at least 24 hours prior to the time the service is to be provided, the interpreter will be paid no less than the minimum fee. 8 Cal. Code Reg. § 9795.3(c)

Nothing in this regulation precludes payment to an interpreter or agency for interpreting services based on an agreement made in advance of services between the interpreter or agency and the claims administrator, regardless of whether such payment is less than, or exceeds, the fees set forth in this regulation. 8 Cal. Code Reg. § 9795.3(d)

The fees set forth in 8 Cal. Code Reg. § 9795.3(b), discussed above, are presumed reasonable for services provided by provisionally certified interpreters only if efforts to obtain a certified interpreter are documented and submitted to the claims administrator with the bill for services. Efforts to obtain a certified interpreter must also be disclosed in any document based in whole or in part on information obtained through a provisionally certified interpreter. 8 Cal. Code Reg. § 9795.3(e)

Interpreter Directories

Interpreters certified in accordance with 8 Cal. Code Reg. §§ 9795.1.5(a)(1) and 9795.1.6(a)(1) are listed at the following websites: 8 Cal. Code Reg. § 9795.5(a)

http://jobs.spb.ca.gov/InterpreterListing/

http://www.courts.ca.gov/programs-interpreters.htm.

Certified interpreters for the purposes of medical treatment appointments and medical-legal exams who meet the qualifications of 8 Cal. Code Reg. § 9795.1.6(a)(2) are listed in the registry for Certification Commission for Healthcare Interpreters (CCHI) or National Board of Certification for Medical Interpreters (National Board) at the following websites: 8 Cal. Code Reg. § 9795.5(b)

https://cchi.learningbuilder.com/Account/Login?ReturnUrl=%2f http://www.certifiedmedicalinterpreters.org/registry.

Proof of certification may be requested by the claims administrator and must be provided by the certified interpreter for the purposes of medical treatment appointments and medical-legal exams if the interpreter is not listed in the CCHI or National Board website directory. 8 Cal. Code Reg. § 9795.5(c)

© Copyright 2013 LexisNexis. All rights reserved. This article is excerpted from an upcoming edition of Herlick, California Workers’ Compensation Handbook.

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