Amended in Assembly April 18, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1376

Introduced by Assembly Member Roger Hernández

February 22, 2013

An act to amend Sections 11018 begin delete and end delete begin insert , end insert 11435.30 begin insert , 11435.35, 11435.40, and 11435.55 end insert of, begin delete to repeal and add Section 11435.35 of, end delete and to repeal Sections begin delete 11435.40, 11435.45, 11435.50, and 11435.55 of, end delete begin insert 11435.45 and 11435.50 of, end insert the Government Code, and to amend Sections 4600 and 4620 of the Labor Code, relating to state government.

LEGISLATIVE COUNSEL’S DIGEST

AB 1376, as amended, Roger Hernández. Administrative adjudication: language assistance.

Existing law requires certain state agencies to provide language assistance in adjudicative proceedings. Existing law requires the State Personnel Board to establish, maintain, administer, and publish annually for these purposes an updated list of certified administrative hearing interpreters and medical examination interpreters it has determined meet certain minimum standards. Existing law requires the Department of Human Resources to designate the languages for which certification shall be established and to establish and charge fees for applications to take interpreter examinations and for renewal of certifications. Existing law authorizes the Department of Human Resources to remove the name of a person from the list of certified interpreters if any specified conditions occurs. Existing law authorizes a hearing agency to provisionally qualify and use another interpreter if a certified interpreter, as specified, cannot be present at the hearing.

This bill would begin delete instead require each agency subject to the language assistance requirements, as specified, to determine the qualifications of interpreters in its proceedings, and would end delete allow the begin delete Administrative Director of the Division of Workers’ Compensation end delete begin insert California Department of Human Resources, until December 31, 2018, end insert to begin delete establish, end delete maintain begin delete , administer, end delete and publish begin delete annually an updated end delete begin insert the end insert list of certified administrative hearing begin insert and medical examination end insert interpreters, as specified. This bill would require a reasonable fee to be collected from each interpreter seeking certification, to cover the reasonable regulatory costs of administering the program. The bill would begin delete repeal the above mentioned provisions related to the Department of Human Resources and the provision that authorizes a hearing agency to provisionally qualify and use another end delete begin insert modify the conditions under which an end insert interpreter begin insert who is not included on one of the lists of certified interpreters may act as an interpreter end insert .

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 11018 of the Government Code is
amended to read:

11018.  

Each state agency that is authorized by any law to
conduct administrative hearings but is not subject to Chapter 5
(commencing with Section 11500) shall nonetheless comply with
Sections 11435.20 begin delete and end delete begin insert , end insert 11435.25 begin insert , and 11435.55 end insert relative to the
furnishing of language assistance at the hearing.

begin delete

SEC. 2.  

Section 11435.30 of the Government Code is amended
to read:

11435.30.  

(a) The Administrative Director of the Division of
Workers’ Compensation may establish, maintain, administer, and
publish annually an updated list of certified administrative hearing
interpreters who, based on testing by an independent organization
designated by the administrative director, have been determined
to meet the minimum standards in interpreting skills and linguistic
abilities necessary for purposes of administrative hearings
conducted pursuant to proceedings of the Workers’ Compensation
Appeals Board. The independent testing organization shall not
have any financial interest in the training of interpreters or in the
employment of interpreters for administrative hearings.

(b) The Administrative Director of the Division of Workers’
Compensation may establish, maintain, administer, and publish
annually an updated list of certified medical examination
interpreters who, based on testing by an independent organization
designated by the administrative director, have been determined
to meet the minimum standards in interpreting skills and linguistic
abilities in languages for purposes of medical examinations
conducted pursuant to proceedings of the Workers’ Compensation
Appeals Board, and medical examinations conducted pursuant to
Division 4 (commencing with Section 3200) of the Labor Code.
The independent testing organization shall not have any financial
interest in the training of interpreters or in the employment of
interpreters for medical examinations.

(c) A fee, as determined by the administrative director, shall be
collected from each interpreter seeking certification. The fee shall
not exceed the reasonable regulatory costs of administering the
testing and certification program and of publishing the list of
certified administrative hearing interpreters or certified medical
examination interpreters on the Division of Workers’
Compensation Internet Web site.

(d)  The Legislature finds and declares that the services
described in this section are of such a special and unique nature
that they may be contracted out pursuant to paragraph (3) of
subdivision (b) of Section 19130. The Legislature further finds
and declares that the services described in this section are a new
state function pursuant to paragraph (2) of subdivision (b) of
Section 19130.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 11435.30 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

11435.30.  

(a)  begin delete The State Personnel Board end delete begin insert Until December 31,
2018, the California end insert begin insert Department of Human Resources end insert shall
begin delete establish, end delete maintain begin delete , administer, end delete and publish begin delete annually an updated end delete
begin insert the end insert list of certified administrative hearing interpreters it has
determined meet the minimum standards in interpreting skills and
linguistic abilities in languages designated pursuant to Section
begin delete 11435.40. end delete begin insert 11435.40, as of December 31, 2013. end insert Any interpreter so
listed may be examined by each employing agency to determine
the interpreter’s knowledge of the employing agency’s technical
program terminology and procedures.

(b) Court interpreters certified pursuant to Section 68562, and
interpreters listed on the State Personnel Board’s recommended
lists of court and administrative hearing interpreters prior to July
1, 1993, shall be deemed certified for purposes of begin delete this section. end delete
begin insert subdivision (a). end insert

(c) (1)  begin delete In addition to the certification procedure provided
pursuant to subdivision (a), the end delete begin insert The end insert Administrative Director of the
Division of Workers’ Compensation may establish, maintain,
administer, and publish annually an updated list of certified
administrative hearing interpreters who, based on testing by an
independent organization designated by the administrative director,
have been determined to meet the minimum standards in
interpreting skills and linguistic abilities in languages designated
pursuant to Section 11435.40, for purposes of administrative
hearings conducted pursuant to proceedings of the Workers’
Compensation Appeals Board. The independent testing
organization shall have no financial interest in the training of
interpreters or in the employment of interpreters for administrative
hearings.

(2)  begin delete (A) end delete begin delete   end delete A fee, as determined by the administrative director,
shall be collected from each interpreter seeking certification. The
fee shall not exceed the reasonable regulatory costs of
administering the testing and certification program and of
publishing the list of certified administrative hearing interpreters
on the Division of Workers’ Compensation’ Internet Web site.

begin delete

(B)

end delete

begin insert ( end insert begin insert d) end insert  The Legislature finds and declares that the services described
in this section are of such a special and unique nature that they
may be contracted out pursuant to paragraph (3) of subdivision
(b) of Section 19130. The Legislature further finds and declares
that the services described in this section are a new state function
pursuant to paragraph (2) of subdivision (b) of Section 19130.

begin delete

SEC. 3.  

Section 11435.35 of the Government Code is repealed.

SEC. 4.  

Section 11435.35 is added to the Government Code,
to read:

11435.35.  

(a) Each agency subject to the language assistance
requirements of this article shall determine the qualifications of
interpreters in its proceedings. The agency may require interpreters
to take an examination, demonstrate certification by an independent
organization, or take an oath that any interpretation provided is
accurate and complete and that the interpreter is without bias in
the proceeding. For interpreters used in administrative hearings,
the presiding officer may verify the interpreter’s qualifications and
administer oaths on the record of the proceeding.

(b) The Legislature finds and declares that the services described
in this section may be contracted out pursuant to paragraphs (3)
and (10) of subdivision (b) of Section 19130 as either highly
specialized and unique or urgent, temporary or occasional, or both.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 11435.35 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

11435.35.  

(a) The begin delete State Personnel Board end delete begin insert California
Department of Human Resources end insert shall begin delete establish, end delete maintain begin delete ,
administer, end delete and publish begin delete annually, an updated end delete begin insert the end insert list of certified
medical examination interpreters it has determined meet the
minimum standards in interpreting skills and linguistic abilities in
languages designated pursuant to Section begin delete 11435.40. end delete begin insert 11435.40, as
of December 31, 2013. end insert

(b) Court interpreters certified pursuant to Section 68562 and
administrative hearing interpreters certified pursuant to Section
11435.30 shall be deemed certified for purposes of this section.

(c) (1)  begin delete In addition to the certification procedure provided
pursuant to subdivision (a), the end delete begin insert The end insert Administrative Director of the
Division of Workers’ Compensation may establish, maintain,
administer, and publish annually an updated list of certified medical
examination interpreters who, based on testing by an independent
organization designated by the administrative director, have been
determined to meet the minimum standards in interpreting skills
and linguistic abilities in languages designated pursuant to Section
11435.40, for purposes of medical examinations conducted
pursuant to proceedings of the Workers’ Compensation Appeals
Board, and medical examinations conducted pursuant to Division
4 (commencing with Section 3200) of the Labor Code. The
independent testing organization shall have no financial interest
in the training of interpreters or in the employment of interpreters
for administrative hearings.

(2)  begin delete (A) end delete begin delete   end delete A fee, as determined by the administrative director,
shall be collected from each interpreter seeking certification. The
fee shall not exceed the reasonable regulatory costs of
administering the testing and certification program and of
publishing the list of certified medical examination interpreters on
the Division of Workers’ Compensation’s Internet Web site.

begin delete

(B)

end delete

begin insert ( end insert begin insert d) end insert  The Legislature finds and declares that the services described
in this section are of such a special and unique nature that they
may be contracted out pursuant to paragraph (3) of subdivision
(b) of Section 19130. The Legislature further finds and declares
that the services described in this section are a new state function
pursuant to paragraph (2) of subdivision (b) of Section 19130.

begin delete

SEC. 5.  

Section 11435.40 of the Government Code is repealed.

end delete

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 11435.40 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

11435.40.  

(a) The begin delete Department of Human Resources end delete
begin insert Administrative Director of the Division of Workers’ Compensation end insert
shall designate the languages for which certification shall be
established under Sections 11435.30 and 11435.35. The languages
designated shall include, but not be limited to, Spanish, Tagalog,
Arabic, Cantonese, Japanese, Korean, Portuguese, and Vietnamese
until the begin delete Department of Human Resources end delete begin insert Administrative Director end insert
finds that there is an insufficient need for interpreting assistance
in these languages.

(b) The language designations shall be based on the following:

(1) The language needs of non-English-speaking persons
appearing before the administrative agencies, as determined by
consultation with the agencies.

(2) The cost of developing a language examination.

(3) The availability of experts needed to develop a language
examination.

(4) Other information the department deems relevant.

begin delete SEC. 6. end delete
begin insert SEC. 5. end insert   

Section 11435.45 of the Government Code is repealed.

begin delete SEC. 7. end delete
begin insert SEC. 6. end insert   

Section 11435.50 of the Government Code is repealed.

begin delete

SEC. 8.  

Section 11435.55 of the Government Code is repealed.

end delete

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 11435.55 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

11435.55.  

(a) An interpreter used in a hearing shall be begin delete certified
pursuant to Section 11435.30. However, if end delete begin insert qualified. A certified
interpreter on any of the lists pursuant to Section 11435.30 is
presumptively qualified. If end insert an interpreter begin delete certified end delete begin insert end insert begin insert on any list made end insert
pursuant to Section 11435.30 cannot be present at the hearing, the
hearing begin delete agency end delete begin insert examiner end insert shall have discretionary authority to
provisionally qualify and use another begin delete interpreter. end delete begin insert interpreter
pursuant to subdivision (c). end insert

(b) An interpreter used in a medical examination shall be
begin delete certified pursuant to Section 11435.35. However, if end delete begin insert qualified. A
certified interpreter on any of the lists pursuant to Section 11435.35
is presumptively qualified. If end insert an interpreter begin delete certified end delete begin insert on any list
made end insert pursuant to Section 11435.35 cannot be present at the medical
examination, the begin delete physician end delete begin insert agency shall have discretionary
authority to end insert provisionally begin delete may end delete begin insert qualify and end insert use another interpreter
begin insert pursuant to subdivision (c) end insert if that fact is noted in the record of the
medical evaluation.

begin insert

(c) An interpreter not named on a list pursuant to Section
11435.35 may be provisionally qualified if both of the following
facts are found:

end insert begin insert

(1) Good cause exists to appoint a nonlisted interpreter.

end insert begin insert

(2) The interpreter is qualified to interpret the proceedings. In
determining whether the interpreter is qualified, the hearing
examiner or agency, as appropriate, shall consider all of the
following:

end insert begin insert

(A) Any interpreter examination or evaluation taken by the
interpreter and the results of this examination or evaluation.

end insert begin insert

(B) The interpreter’s general education, language training,
interpreting training, and translation training.

end insert begin insert

(C) The interpreter’s language teaching experience.

end insert begin insert

(D) The interpreter’s prior experience interpreting in court
proceedings, administrative hearings, medical examinations, and
other settings.

end insert begin insert

(E) The interpreter’s experience with written translation.

end insert begin insert

(F) Any training in professional ethics.

end insert begin insert

(G) The interpreter’s training in applicable terminology.

end insert begin insert

(d) If any party objects to the qualifications of the proposed,
the objection shall be noted on the record of the hearing or
evaluation.

end insert

begin delete SEC. 9. end delete
begin insert SEC. 8. end insert   

Section 4600 of the Labor Code is amended to read:

4600.  

(a) Medical, surgical, chiropractic, acupuncture, and
hospital treatment, including nursing, medicines, medical and
surgical supplies, crutches, and apparatuses, including orthotic and
prosthetic devices and services, that is reasonably required to cure
or relieve the injured worker from the effects of his or her injury
shall be provided by the employer. In the case of his or her neglect
or refusal reasonably to do so, the employer is liable for the
reasonable expense incurred by or on behalf of the employee in
providing treatment.

(b) As used in this division and notwithstanding any other law,
medical treatment that is reasonably required to cure or relieve the
injured worker from the effects of his or her injury means treatment
that is based upon the guidelines adopted by the administrative
director pursuant to Section 5307.27.

(c) Unless the employer or the employer’s insurer has
established or contracted with a medical provider network as
provided for in Section 4616, after 30 days from the date the injury
is reported, the employee may be treated by a physician of his or
her own choice or at a facility of his or her own choice within a
reasonable geographic area. A chiropractor shall not be a treating
physician after the employee has received the maximum number
of chiropractic visits allowed by subdivision (d) of Section 4604.5.

(d) (1) If an employee has notified his or her employer in
writing prior to the date of injury that he or she has a personal
physician, the employee shall have the right to be treated by that
physician from the date of injury if the employee has health care
coverage for nonoccupational injuries or illnesses on the date of
injury in a plan, policy, or fund as described in subdivisions (b),
(c), and (d) of Section 4616.7.

(2) For purposes of paragraph (1), a personal physician shall
meet all of the following conditions:

(A) Be the employee’s regular physician and surgeon, licensed
pursuant to Chapter 5 (commencing with Section 2000) of Division
2 of the Business and Professions Code.

(B) Be the employee’s primary care physician and has
previously directed the medical treatment of the employee, and
who retains the employee’s medical records, including his or her
medical history. “Personal physician” includes a medical group,
if the medical group is a single corporation or partnership
composed of licensed doctors of medicine or osteopathy, which
operates an integrated multispecialty medical group providing
comprehensive medical services predominantly for
nonoccupational illnesses and injuries.

(C) The physician agrees to be predesignated.

(3) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a health care service
plan licensed pursuant to Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code, and the
employer is notified pursuant to paragraph (1), all medical
treatment, utilization review of medical treatment, access to
medical treatment, and other medical treatment issues shall be
governed by Chapter 2.2 (commencing with Section 1340) of
Division 2 of the Health and Safety Code. Disputes regarding the
provision of medical treatment shall be resolved pursuant to Article
5.55 (commencing with Section 1374.30) of Chapter 2.2 of
Division 2 of the Health and Safety Code.

(4) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a group health insurance
policy as described in Section 4616.7, all medical treatment,
utilization review of medical treatment, access to medical
treatment, and other medical treatment issues shall be governed
by the applicable provisions of the Insurance Code.

(5) The insurer may require prior authorization of any
nonemergency treatment or diagnostic service and may conduct
reasonably necessary utilization review pursuant to Section 4610.

(6) An employee shall be entitled to all medically appropriate
referrals by the personal physician to other physicians or medical
providers within the nonoccupational health care plan. An
employee shall be entitled to treatment by physicians or other
medical providers outside of the nonoccupational health care plan
pursuant to standards established in Article 5 (commencing with
Section 1367) of Chapter 2.2 of Division 2 of the Health and Safety
Code.

(e) (1) When at the request of the employer, the employer’s
insurer, the administrative director, the appeals board, or a workers’
compensation administrative law judge, the employee submits to
examination by a physician, he or she shall be entitled to receive,
in addition to all other benefits herein provided, all reasonable
expenses of transportation, meals, and lodging incident to reporting
for the examination, together with one day of temporary disability
indemnity for each day of wages lost in submitting to the
examination.

(2) Regardless of the date of injury, “reasonable expenses of
transportation” includes mileage fees from the employee’s home
to the place of the examination and back at the rate of twenty-one
cents ($0.21) a mile or the mileage rate adopted by the Director
of Human Resources pursuant to Section 19820 of the Government
Code, whichever is higher, plus any bridge tolls. The mileage and
tolls shall be paid to the employee at the time he or she is given
notification of the time and place of the examination.

(f) When at the request of the employer, the employer’s insurer,
the administrative director, the appeals board, or a workers’
compensation administrative law judge, an employee submits to
examination by a physician and the employee does not proficiently
speak or understand the English language, he or she shall be
entitled to the services of a qualified interpreter in accordance with
conditions and a fee schedule prescribed by the administrative
director. These services shall be provided by the employer. For
purposes of this section, “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 Section 68566 of, the Government
Code.

(g) 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 subdivision (f), but shall meet
any requirements established by rule by the administrative director
that are substantially similar to the requirements set forth in Section
1367.04 of the Health and Safety Code. The administrative director
shall adopt a fee schedule for qualified interpreter fees in
accordance with this section. Upon request of the injured employee,
the employer or insurance carrier shall pay for interpreter services.
An employer shall not be required to pay for the services of an
interpreter who is not certified or is provisionally begin delete certified by the
person conducting the medical treatment or examination end delete begin insert qualified end insert
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 begin delete provided end delete begin insert designated end insert pursuant to Section begin delete 11435.30 end delete
begin insert 11435.40 end insert of the Government Code.

(h) Home health care services shall be provided as medical
treatment only if reasonably required to cure or relieve the injured
employee from the effects of his or her injury and prescribed by
a physician and surgeon licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business
and Professions Code, and subject to Section 5307.1 or 5703.8.
The employer shall not be liable for home health care services that
are provided more than 14 days prior to the date of the employer’s
receipt of the physician’s prescription.

begin delete SEC. 10. end delete
begin insert SEC. 9. end insert   

Section 4620 of the Labor Code is amended to read:

4620.  

(a) For purposes of this article, a medical-legal expense
means any costs and expenses incurred by or on behalf of any
party, the administrative director, or the board, which expenses
may include X-rays, laboratory fees, other diagnostic tests, medical
reports, medical records, medical testimony, and, as needed,
interpreter’s fees by a certified interpreter pursuant to Article 8
(commencing with Section 11435.05) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of, or Section 68566 of, the Government
Code, for the purpose of proving or disproving a contested claim.

(b) A contested claim exists when the employer knows or
reasonably should know that the employee is claiming entitlement
to any benefit arising out of a claimed industrial injury and one of
the following conditions exists:

(1) The employer rejects liability for a claimed benefit.

(2) The employer fails to accept liability for benefits after the
expiration of a reasonable period of time within which to decide
if it will contest the claim.

(3) The employer fails to respond to a demand for payment of
benefits after the expiration of any time period fixed by statute for
the payment of indemnity.

(c) Costs of medical evaluations, diagnostic tests, and
interpreters incidental to the production of a medical report do not
constitute medical-legal expenses unless the medical report is
capable of proving or disproving a disputed medical fact, the
determination of which is essential to an adjudication of the
employee’s claim for benefits. In determining whether a report
meets the requirements of this subdivision, a judge shall give full
consideration to the substance as well as the form of the report, as
required by applicable statutes and regulations.

(d) If the injured employee cannot effectively communicate
with an examining 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 the
medical examination. Upon request of the injured employee, the
employer or insurance carrier shall pay the costs of the interpreter
services, as set forth in the fee schedule adopted by the
administrative director pursuant to Section 5811. An employer
shall not be required to pay for the services of an interpreter who
is provisionally begin delete certified end delete begin insert qualified end insert 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 begin delete provided end delete begin insert designated end insert
pursuant to Section begin delete 11435.30 end delete begin insert 11435.40 end insert of the Government Code.