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

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            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