BILL ANALYSIS Ó Senate Committee on Labor and Industrial Relations William W. Monning, Chair Date of Hearing: September 11, 2013 2013-2014 Regular Session Consultant: Gideon L. Baum Fiscal:No Urgency: Yes Bill No: AB 1376 Author: Hernandez As Introduced/Amended: September 6, 2013 SUBJECT Workers' compensation: medical treatment: interpreters. KEY ISSUE Should the Legislature extend the deadline for complying with medical interpreter certification requirements to March 1, 2014? ANALYSIS Existing law establishes a workers' compensation system that provides benefits to an employee who suffers from an injury or illness that arises out of and in the course of employment, irrespective of fault. This system requires all employers to secure payment of benefits by either securing the consent of the Department of Industrial Relations to self-insure or by securing insurance against liability from an insurance company duly authorized by the state. Existing law provides that, if an employee submits to examination by a physician at the request of the employer, the employer's insurer, or other specified parties, 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. (Labor Code §4600) Existing law provides that, for the purposes of workers' compensation, the interpreter can only be certified, or deemed certified, through a certification process created by the State Personnel Board, the Judicial Council, or a third-party testing organization designated by the Division of Workers' Compensation. (Labor Code §4600) Existing law also provides that an employer does not need to pay for a non-certified interpreter unless the interpreter provides interpretation services for a language where certification has not been established. (Labor Code §4600) Existing regulations set the requirements that medical interpreters must meet in order to be considered qualified interpreters for the purposes of the workers' compensation system. In order to be certified , a medical interpreter must: 1) Listed by the State Personnel Board as a certified interpreter; 2) Passing the Certification Commission for Healthcare Interpreters (CCHI) exam; or 3) Passing the National Board of Certification for Medical Interpreters (National Board) exams. (California Code of Regulations, Title 8, §§9795.1 & 9795.1.6) This bill extends the deadline for complying with the above-discussed regulations to March 1, 2014. COMMENTS 1. Need for this bill? Prior to the passage of last year's workers' compensation reform bill, SB 863 (DeLeon), multiple stakeholders reported significant abuse and serious problems with how medical interpreters were provided to injured workers. One of the most common complaints was the use of non-certified medical interpreters providing interpretive services to injured workers. These non-certified interpreters (also known as provisionally certified interpreters) were largely unregulated Hearing Date: September 11, 2013 AB 1376 Consultant: Gideon L. Baum Page 2 Senate Committee on Labor and Industrial Relations and viewed as a source of abuse by both employer and labor stakeholders. SB 863 partially addressed this by requiring that the Division of Workers' Compensation (DWC) regulate the certification process for interpreters. The emergency regulation was first published on December 19, 2012, only 3 months after SB 863 was signed, and went into effect January 1, 2013. At that time, the emergency regulation included a permissive requirement that an interpreter passes the CCHI exam, but it was relatively vague on the path to certification. Starting in March of this year, the DWC began the regulatory process to concretize permanent regulations on the certification of medical interpreters. It was not until June 14 of this year, however, that both certification paths (CCHI and the National Board exams) were set down in draft regulations. This final version of the amendments was approved on August 13, nearly 3 months later. Since that time, interpreters must be certified in order to receive compensation, barring the unusual circumstance where a provisionally certified interpreter can be utilized. AB 1376 would extend the period of time by which a medical interpreter needs to be certified to March 1, 2014. AB 1376 would not impact the methods of certification, nor would it impact other items set by regulation, such as the interpreter fee schedule. 2. Staff Comments: As noted above, AB 1376 amends Labor Code Section 4600 (g) in order to give medical interpreters more time to comply with the certification requirements provided under statute and regulation. However, under existing law, Labor Code Section 4600 (g) also permits employers to not pay interpreters that lack certification. This could create a situation where the statute has an internal inconsistency: the Legislature gives more time to medical interpreters to get certified, but allows employers to pay those same interpreters for not being Hearing Date: September 11, 2013 AB 1376 Consultant: Gideon L. Baum Page 3 Senate Committee on Labor and Industrial Relations certified. If AB 1376 were to become law, it is unlikely that the Workers' Compensation Appeals Board (WCAB) would sustain such an inconsistency, as Legislative intent is manifest in the bill. Rather, it is likely that the WCAB would find that the Legislature intended to extend the timeline for the implementation of the regulations to March 1, 2014, which would provide additional time to interpreters to get certified. Therefore, AB 1376 also extends the time an employer can deny payment due to a lack of certification. However, the Committee may wish to consider encouraging the author to submit a letter to the journal in order to fully and completely manifest legislative intent. 3. Proponent Arguments : Proponents note that last year's workers' compensation reform required that medical interpreters become certified by a recognized, independent, and impartial organization in order to work in workers' compensation hearings or injured workers' medical appointments. According to the proponents, due to legal restrictions, the regulation proposed by the Department of Industrial Relations could not contain a compliance period. Proponents argue that the lack of a compliance period did not provide medical interpreters with a sufficient period of time to comply, as the certification process can take up to six months from the initial registration date until receiving a notice of successful certification. 4. Opponent Arguments : None on file. 5. Prior Legislation : SB 863 (DeLeon), Statutes of 2012, Chapter 363, was discussed above. Hearing Date: September 11, 2013 AB 1376 Consultant: Gideon L. Baum Page 4 Senate Committee on Labor and Industrial Relations SUPPORT Voters Injured at Work (Sponsor) California Applicants' Attorneys Association California Neurology Society California Society of Industrial Medicine and Surgery California Society of Physical Medicine and Rehabilitation California Workers' Compensation Services Association Latino Workers' Compensation Professionals Statewide Interpreters Corp. VQ OrthoCARE OPPOSITION None on file. Hearing Date: September 11, 2013 AB 1376 Consultant: Gideon L. Baum Page 5 Senate Committee on Labor and Industrial Relations