BILL ANALYSIS Ó
AB 804
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Date of Hearing: April 7, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
AB 804
(Roger Hernández) - As Amended March 23, 2015
SUBJECT: Shorthand reporters: continuing education
requirements.
SUMMARY: Requires the Court Reporters Board of California (CRB)
to establish continuing education (CE) requirements for renewal
of a shorthand reporter certificate.
EXISTING LAW
1)Provides that a certified shorthand reporter (CSR) certificate
is valid for one year, and may be renewed by applying for the
certificate renewal, paying the renewal fee, and notifying the
CRBB of any substantially related criminal convictions or of
any disciplinary action taken by any regulatory agency against
the licensee. (Business and Professions Code (BPC) § 8024)
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2)Establishes the fees the CRB may charge, including fees for
examinations, initial and renewal CSR certificates. (BPC §
8031)
3)Authorizes the CRB to investigate complaints against
licensees. (BPC § 8008)
4)Authorizes the CRB to suspend, revoke, or deny a certificate,
or take other disciplinary action for negligence,
incompetence, and unprofessional conduct. (BPC § 8025)
5)Authorizes the CRB to issue administrative citations and
assess fines for violations of the rules and regulations
pertaining to CSRs. (BPC § 8027.5)
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6)Requires the director of The Department of Consumer Affairs
(DCA) to develop regulatory guidelines for CE programs to
ensure that mandatory continuing education is used as a means
to create a more competent licensing population. (BPC § 166)
THIS BILL
1)Requires the CRB to adopt regulations that establish minimum
CE requirements for renewal of a CSR certificate by July 1,
2016.
2)Requires certificate holders, six months after the effective
date of the regulations, to certify completion of minimum CE
requirements to the CRB when renewing a certificate.
3)Requires the CRB to ensure that the CE requirement is relevant
to the practice of shorthand reporting.
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4)Requires the CRB to establish a procedure for approving CE
course providers, and requires CE providers to comply with
procedures established by the CRB.
5)Authorizes the CRB to establish a fee, as specified, for the
approval of CE providers.
6)Permits the CRB to revoke or deny the right of a CE provider
for failure to comply with requirements or regulations as
specified.
7)Authorizes the CRB to establish exceptions to the CE
requirements for individuals who cannot meet the CE
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requirements for reasons of health, military service, or undue
hardship.
8)Requires that the requirements comply with the guidelines for
mandatory CE established by the DCA.
9)Authorizes the CRB to adopt regulations to implement the above
provisions.
FISCAL EFFECT: Unknown. This bill has been keyed fiscal by the
Legislative Counsel.
COMMENTS
1)Purpose. This bill is co-sponsored by the California Court
Reporters Association and the Deposition Reporters Association
of California. According to the author, this bill "requires
the Court Reporters Board of California to adopt regulations
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to establish continuing education requirements for renewal of
a shorthand reporter's certification that are relevant to the
practice of shorthand reporting, and requires the board to
establish a procedure for approving providers of [CE] courses.
Currently there are no structures in place that ensure that
[a] CSR is gaining or maintaining the education necessary to
stay updated on the rules, regulations and statutes affecting
the practice of shorthand reporting. The Judicial Council
rules [mandate CE] for all staff, including court reporters,
[but] does not specifically mandate that the official court
reporter obtain [CE] specifically as it relates to the job of
court reporting.
Once a shorthand reporter passes their initial test for
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licensing, they do not ever have to be retested in order to
renew their license. The only time a CSR is ever retested for
a license is if the CSR relinquishes their licenses then
decides down the road to begin working again or becomes
re-licensed."
2)Background. There are two types of CSRs (commonly known as
court reporters). "Official" reporters are individuals who
work as employees of the court system. "Freelance" reporters
are individuals hired privately by court reporting businesses,
firms, or attorneys to report depositions. In order to obtain
a license, CSRs must attend a CRB-approved court reporting
school and pass two written exams and a performance exam.
There are 14 shorthand reporting schools in California and
approximately 7,000 CSRs. The CRB issues a CSR certificate for
a one-year period, which expires on the last day of the birth
month of the licensee.
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Enforcement data. When a consumer makes a complaint against a
licensee, the CRB reviews the complaint for jurisdiction and
severity. Where the Board notices an error or mistake that is
benign to the consumer, it may choose not to sanction the
licensee-CSRs will often refund the payment for an
unsatisfactory transcript. However, where the error greatly
harms the consumer, the Board will initiate enforcement
proceedings, which can include fines, license revocation
citation, fine, probation, suspension and, in the most
egregious of cases, revocation.
Currently, the CRB receives about 100 consumer complaints a
year, which is divided between untimely production of
transcripts, inaccuracy, and other deficiencies. In the
2013-2014 Fiscal Year, the CRB received 106 complaints.
For the same year, other similarly-sized boards received
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similar numbers: the acupuncture board received 189; the board
of optometry received 238; the osteopathic medical board
received 360; and the physician assistant board received 351.
Judicial Counsel CE requirement. In 2007, the Judicial Counsel
of California adopted a CE requirement for all personnel
employed by the Court, including court reporters (California
Rules of Court, Title 10, Division 2, Chapter 7). It requires
court employees to take at least 8 hours of CE every 2 years.
While not specific to court reporting, employees have two
choices for CE: (1) they may choose from approved providers;
or (2) they may choose a course that is relevant to the work
of the courts or the judicial branch, is one hour long, and
has identified anticipated learning outcomes (how new
knowledge, skills, or abilities will be applied, demonstrated,
or used). The Court's executive officers, managers, and
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supervisors must grant employees enough leave to complete the
education, develop educational plans, and ensure proper
reimbursement for travel.
CE issues during sunset oversight hearings. The issue of CE
was discussed several times during the CRB's sunset review
process. In 1996, the process covered the pros and cons of CE
requirements, but the CRB deleted a CE proposal from its 1994
legislation when it learned that the Governor would not
approve it.
At that time, the CRB stated that many in the profession
believe that the Board's pre-license testing system keeps the
standard of entry at an appropriate level, and the intensity
demanded in the day-to-day requirements in the occupation
drives the individual licensees to seek and find the
educational training requirements necessary on their own
initiative. However, others believed that, because the
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industry changes quickly, there should be higher standards for
the profession.
In the end, the Joint Committee's recommendation did not
include pursuing CE. The issue was again raised in the
2004-2005 review of the Board; however, the joint oversight
committee did not recommend establishing a CE requirement.
Necessity of CEs for CSRs and consumer protection. The
sponsors and author of the bill note that the difficulty of
the profession, the constant changes in legal terms, and the
steady stream of new and complex technologies increase the
risk of harm to the legal rights of consumers. In addition,
many other states require CSRs to complete CE. Therefore, they
state that the CBR should require CSRs to complete CE.
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Further, the CRB has also noted industry changes that may lead
to consumer harm. It noted that the court reporting business
model has changed, which now results in a larger percentage of
independent contractors working for large corporate firms
owned by non-licensees.
In the past, CSRs primarily worked in firms owned by licensees
that strongly encouraged the CSRs to stay current with changes
in technology and litigation support services. Now, however,
CSRs tend to work as independent contractors that are hired by
large conglomerates. Because the larger conglomerates tend not
to provide as much oversight of CSRs, CSRs working as
independent contractors have less incentive to stay current
with the profession.
However, the CRB does not track the number of CSRs that work
as independent contractors, for firms, or for courts. Further,
the enforcement data shows that CRB has not received a
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particularly high number of consumer complaints. Therefore, it
is not clear what impact this industry change has made. One
answer may be that issues in quality are rectified through the
normal processes-sometimes inaccuracies can be resolved
through the fact checking and proofreading process CSRs go
through before delivering a final product. Without data,
though, there is no clear answer and no issue to rectify.
Nonetheless, imposing CE may be a useful preventive measure,
given the risk to a litigant's legal rights. However, past
analyses have noted a distinction between licensees that
voluntarily seek out CE to better themselves and unwilling
licensees that take CE because they are required to. Because
CSRs that consistently produce inaccurate transcripts may be
disciplined by the CRB or have trouble finding work, they
already have reasons to stay up to date with their practice.
Therefore, an additional mandatory requirement may impact
educational outcomes.
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There is also an argument that CSRs (and all professions) can
benefit from CE, and there are many professional organizations
in support. For example, there are ethical rules that court
reporters must follow, and CE may strengthen faith in the
profession. Therefore, the benefits to the profession and
consumers will have to be weighed against the costs of a CE
requirement to the consumers, licensees, and the CRB.
Policy issues for consideration. Legislation requiring CE's
for CSRs has been passed and vetoed two separate times in past
legislative sessions. The most recent was SB 671 (Price) of
2011. The provisions of SB 671 were substantially similar to
those contained in this bill; however, it was vetoed by
Governor Brown, citing concerns about the burden of CE
requirements. According to the Governor's veto message:
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"This bill would make license renewal for court reporters
contingent on continuing education. The whole idea of
legally mandated 'continuing education' is suspect in my
mind. Professionals already are motivated to hone their
skills - or risk not getting business.
Requiring them to pay fees to 'continuing education
providers' is an unwarranted burden."
The Committee may wish to inquire of the author, what, if
anything, has been done to alleviate the Governor's concerns
as explained in his veto message.
3)Prior Legislation. SB 671 (Price) of 2011 would have required
the CRB to adopt regulations to establish CE requirements for
renewal of CSR certificate and requires the CRB to establish a
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procedure for approving providers of CE courses. (STATUS: This
bill was vetoed by Governor Brown because he believed it was
an unwarranted burden)
AB 2189 (Karnette) of 2008 would have required the CRB to
establish continuing education requirements for renewal of a
shorthand reporter's certificate and makes other changes
related to the certification and regulation of shorthand
reporters.. (STATUS: This bill was vetoed by Governor Brown
because he believed it was an unwarranted burden)
ARGUMENTS IN SUPPORT
The California Court Reporters Association (co-sponsor) writes,
"Under current law, there are no requirements in place to ensure
that a CSR is maintaining the education needed to stay updated
on rules, regulations, statutes and advancing technologies that
affect the profession. While in many cases, continuing
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professional development and education is undertaken
voluntarily, some reporters who practice in more isolated
settings may not have access to information related to
advancements or changes in the profession. Consumers of the
products and services, offered by a CSR, expect to receive the
latest available technology, i.e., realtime reporting, Internet
text streaming, transcript repositories, exhibit scanning and
linking to transcripts, and much more.
Continuing education requirements ensure that every CSR can
produce a verbatim record that continues to be held to the
highest possible standard."
The Deposition Reporters Association of California (co-sponsor)
submitted a lengthy support letter to the Committee. Its six
arguments in support of this measure were:
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First, "deposition reporting is one of the most critical parts
of our formal system of resolving disputes. However, they are
currently the only licensees in the legal profession that are
not required to undergo monitoring of their enduring competence
through continuing education."
Second, "Continuing education and competency is a critical
compliment to the other tools available to regulators to protect
consumers, and one of the few tools available."
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Third, "official court reporters who work in courtrooms
transcribing court hearings under the protective eyes of the
judge must currently take eight hours of continuing education
every two years. This continuing education requirement reflects
the considered judgment of the Judicial Council - judges -- and
is embraced by California Rules of Court 10.464."
On the other hand "Freelance deposition reporters are officers
of the court - literally extensions of the court. But - and this
is key -- unlike other impartial judicial officers, deposition
reporters must ensure the integrity and accuracy of the vital
written record while working in a private commercial setting,
and notwithstanding that they are hired by one of the parties in
often hotly contested litigation."
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"Moreover, the NCRA and the Court Reporters Board have, for
example, recently adopted new rules strictly curbing freebies
and kickbacks some freelance deposition reporters provide to law
firm employees to drum-up business. Every licensee must be
aware of these rules, the pernicious conflicts of interest that
prompted their enactment, and the consequences to litigants and
the profession if they are disobeyed. But, today, without this
bill, that is left to happenstance."
Fourth, "the Joint Committee has in the past pointed the Board
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toward continuing education as a worthwhile goal. Issue #4 of
the 2005 sunset review report appears to chastise the Board for
not more aggressively pursuing continuing education. Continuing
education was an issue as far back as in the 1996 Sunset Review
Report."
Fifth, "the number of laws and the rapidly evolving technologies
that hallmark the profession amply support requiring deposition
professionals to keep their skills up-to-date, not for their
sake but to ensure the enduring integrity and caliber of a
product so essential for fair adjudications."
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"This is no way to run a legal system where licensees doing a
critical job worthy of a license are concerned. In fact, this is
why a majority of states require continuing education of court
reporters."
Sixth, "AB 804 is carefully crafted. DCA has rightly said the
cost of implementing the program - tracking those who have and
have not satisfied the requirements -- are minor and absorbable.
To the extent there might be costs that are unanticipated, the
bill wisely permits - but does not require - the Board to charge
those who wish to provide continuing education programs a modest
fee. The measure establishes the parameters of the continuing
education program (e.g., guaranteeing that it must be relevant
to the practice of the profession) but does not micromanage the
Board's discretion - either at the start-up or over time -- to
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craft the program around practical considerations, convenience
to licensees, and similar considerations."
ARGUMENTS IN OPPOSITION
None on file.
REGISTERED SUPPORT / OPPOSITION:
Support
California Court Reporters Association (co-sponsor)
Deposition Reporters Association of California (co-sponsor)
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Northern California Court Reporters Association
Sacramento Official Court Reporters Association
San Diego Superior Court Reporters Association
Service Employees International Union
Opposition
None on File.
Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301
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