BILL ANALYSIS Ó AB 2230 Page 1 Date of Hearing: May 4, 2016 ASSEMBLY COMMITTEE ON INSURANCE Tom Daly, Chair AB 2230 (Chu) - As Introduced February 18, 2016 SUBJECT: Workers' compensation: language interpreters SUMMARY: Provides that interpreters, when needed in the workers' compensation system, may be selected by the applicant. Specifically, this bill: 1)Provides that an injured employee who is not proficient in English and therefore needs an interpreter has the right to select the interpreter of his or her choice in the following circumstances: a) When the employee has been requested by the employer or a workers' compensation judge to submit to an examination by a physician; b) When receiving treatment from the employee's treating physician; c) When formal administrative proceedings are being conducted on the injured employee's case; and AB 2230 Page 2 d) When a deposition of the injured employee is being conducted. 2)Allows the injured employee to select the interpreter for other witnesses who are being deposed or testifying at administrative proceedings. 3)Authorizes the employer to select an interpreter in any of these circumstances if the injured employee does not. EXISTING LAW: 1)Provides for a comprehensive system of employer-paid benefits for employees who suffer injuries or conditions that arise out of or occur in the course of employment. 2)Establishes procedures for obtaining medical care and a system for resolving disputes that includes pre-trial depositions, employer-requested medical evaluations, and administrative adjudication of disputed issues before workers' compensation judges. 3)Entitles an injured employee who is not proficient in the English language to an interpreter paid for by the employer. 4)Requires interpreters to be certified. 5)Requires the Administrative Director (AD) of the Division of Workers' Compensation (DWC) to establish a fee schedule for interpreting services. AB 2230 Page 3 6)Allows an employer or insurer to contract for services, including interpreting services, at compensation below the fee schedule. 7)Prohibits an interpreter from disclosing to any person who was not an immediate participant in the communication anything about what was interpreted. FISCAL EFFECT: Undetermined impact on state workers' compensation costs. COMMENTS: 1)Purpose . According to the author, the current system allowing employers to select interpreters for injured workers is highly problematic for both the injured worker and their legal representatives. Injured workers should be able to enjoy the services of interpreters whose sole duty is to them. A major concern of lawyers who represent injured workers is that an interpreter employed by the employer might disclose confidential client information or communications to the employer. 2)Fee schedule . The regulations adopted by the DWC to implement changes in the rules governing interpreters after SB 863 (Statutes 2011, Chapter 363) authorize the employer to contract for and supply interpreter services, and establish appropriate fees. However, it is lawful for employers to enter into contracts with interpreters or firms that provide interpreters at a cost below the established fee schedules. In essence, the schedule is the default price, but parties may agree to lower or higher prices by mutual contract. One AB 2230 Page 4 common way that employers control workers' compensation costs is to enter into agreements with firms guaranteeing a volume of business in exchange for a discounted price. Opponents of the bill argue that by allowing the injured employee to select the interpreter, costs will rise because it will defeat the ability of employers to enter into discount contracts. 3)Conflict of interest . Proponents argue that an interpreter selected and paid by the employer faces a conflict of interest. In theory, there could be a conflict. However, opponents point out that existing statutes specifically mandate impartiality, and the Codes of Ethics of interpreter certifying bodies have similar ethical rules. Opponents suggest that there is no evidence of any systemic problem that requires turning current practice on its head. The bill itself could present the potential for conflicts. Allowing the recipient of services free choice to select providers is a consistent concern in the workers' compensation system. For example, employers are allowed to establish networks of physicians and other health care services, including contracts that include compensation below fee schedule. In most circumstances, injured workers are required to obtain treatment from these networks. Cost containment, elimination of incentives for abusive billing practices, and assuring quality in the services provided are the primary policy reasons behind the laws authorizing the use of employer-arranged networks. Opponents maintain that there is no reason to treat interpreter services any different. 4)Scope of bill . The bill does not authorize employee choice in every circumstance that the law requires the employer to provide interpreter services. Specifically, "medical-legal" evaluations are not covered by the bill. According to proponents, they crafted the bill to address only the most critical situations where an interpreter should be chosen by the employee. Some supporters, notably organized AB 2230 Page 5 interpreters, have asked that the bill be expanded to apply to medical-legal appointments, and other times when interpreters are required. 5)Attorney-client communications . One area of particular concern addressed by proponents is that employer provided and paid interpreters might be susceptible to pressure from the employer to disclose communications that would be covered by the attorney-client privilege. As noted above, there is a general prohibition in statute against an interpreter disclosing to anyone not a part of a conversation the contents of that conversation. One potential way to address the concern that interpreters might be pressured to make these disclosures would be to expressly add a protection in statute concerning attorney-client communications that would provide interpreters a specific response if that pressure should arise. The author may wish to consider narrowing the bill to specifically address the attorney-client communication issue, and leave current law unchanged on the selection of interpreters. REGISTERED SUPPORT / OPPOSITION: Support California Applicants' Attorney Association (CAAA) California Immigrant Policy Center (CIPC) California Workers' Compensation Interpreters Association (CWCIA) AB 2230 Page 6 Opposition Acclamation Insurance Management Services ACIC Insurance AIA California Council Alhambra Chamber of Commerce Allied Managed Care Associated General Contractors California Association of Joint Powers Authorities California Chamber of Commerce California Coalition on Workers' Compensation California Manufacturers & Technology Association California Professional Association of Specialty Contractors AB 2230 Page 7 California Special Districts Association California State Association of Counties Camarillo Chamber of Commerce Greater Conejo Valley Chamber of Commerce League of California Cities National Federation of Independent Business North Orange County Chamber of Commerce Redondo Beach Chamber of Commerce Small Business California South Bay Alliance of Chamber of Commerce Southwest California Legislative Council Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086 AB 2230 Page 8