BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1379 (Mendoza) - Workers' Compensation:  depositions:   
          interpreters
          
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          |Version: March 29, 2016         |Policy Vote: L. & I.R. 5 - 0    |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: April 25, 2016    |Consultant: Robert Ingenito     |
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          This bill meets the criteria for referral to the Suspense File.




          Bill  
          Summary: SB 1379 would require that certified interpreters at a  
          workers' compensation hearing or deposition state the same  
          specific information on the record as certified interpreters at  
          a court proceeding.


          Fiscal  
          Impact: 
                 The Department of Industrial Relations (DIR) indicates  
               that it would incur first-year costs of $876,000 and  
               ongoing costs of $815,000 (special fund) annually  
               thereafter to implement the provisions of the bill.








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                 Assuming that this bill affects five percent of the  
               liens filed annually in the workers' compensation system  
               related to interpreter services, the bill could increase  
               annual costs by $1.4 million.




          Background:  Current 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 (1) securing the consent of  
          DIR to self-insure, or (2) by securing insurance against  
          liability from an insurance company duly authorized by the  
          State. If the injured employee cannot effectively communicate  
          with his or her treating physician because he or she cannot  
          proficiently speak or understand English, the injured employee  
          is entitled to the services of a qualified interpreter during  
          medical treatment appointments. Interpreter services must be  
          paid for by the employer or insurer.
          Under current law, the Workers Compensation Appeals Board (WCAB)  
          or any party to the action or proceeding, may, in any  
          investigation or hearing before the appeals board, cause the  
          deposition of witnesses residing within or without the State. To  
          that end the attendance of witnesses and the production of  
          records may be required. Additionally, if the employer or  
          insurer requests a deposition and interpretation services are  
          required because the injured employee or deponent does not  
          proficiently speak or understand English, upon a request from  
          either, the employer shall pay for the services of a language  
          interpreter certified or deemed certified by law. 


          Existing regulations (California Code of Regulations, Title 8,  
          §9795.1.5) require that, in order for an interpreter to be paid  
          to interpret at a hearing, deposition, or arbitration, the  
          interpreter must be certified by the State Personnel Board or  
          California court system and listed on their respective internet  
          sites. An interpreter can be provisional certification if a  
          certified interpreter cannot be found and if specified  
          conditions are met. 









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          Proposed Law:  
          Current law requires that a certified interpreter providing  
          interpretive services at a court proceeding must state specified  
          information on the record. This bill would require that if  
          interpreter services are required at a workers' compensation  
          deposition or hearing, the identical information must be stated  
          on the record, specifically all of the following:
                       The name of the certified or registered court  
                  interpreter, as listed on his or her court interpreter  
                  certification or registration.


           His or her current certification or registration number.


                       A statement that the certified or registered court  
                  interpreter's identification has been verified, by the  
                  board or judge ordering the deposition, or by the party  
                  giving testimony, or his or her representative, using a  
                  certified or registered interpreter identification badge  
                  issued by the Judicial Council or other documentation  
                  that verifies the interpreter's certification or  
                  registration accompanied by photo identification.


                       The language to be interpreted.


                       A statement that the interpreter's oath was  
                  administered to the certified or registered court  
                  interpreter or that he or she has an oath on file with  
                  the court.




          
          Staff Comments: SB 863 (DeLeon), Chapter 363, Statutes of 2012,  
          required that interpreters in the California workers'  
          compensation system must be certified. Previously, nearly all  
          stakeholders reported significant fraudulent activity among  
          non-certified interpreters. Also as noted previously, for the  
          purposes of hearings or depositions, the certification must be  







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          done by either the State Personnel Board (SPB) or the court  
          system.


          Recently, the Interpreters Guild of America (IGA) has reported  
          persistent interpretive services fraud at both WCAB hearings and  
          depositions. Specifically, IGA reports that non-certified  
          interpreters are interpreting at hearings and depositions and  
          signing in using the name and certification number of someone  
          else, or using their own name but using someone else's  
          certification number. 


          DIR's fiscal analysis drives off the assumption that this bill  
          would increase interpreter liens, consequently increasing the  
          department's workload and administrative costs. A workers'  
          compensation lien is a legal way to essentially place a claim on  
          a workers' compensation case. In general, liens are filed on  
          disputed claims, where an employer denies that an injury is  
          occupational. In these cases, a medical provider or service  
          provider (like an interpreter) files a lien after providing  
          services, with the liens being settled at a lien settlement  
          conference after the workers' compensation claim is addressed.  
          Many stakeholders have argued that the liens process is troubled  
          and is a center of significant workers' compensation fraud  
          generally, but have also focused specifically on liens filed by  
          language interpreters.


          DIR interprets the bill in its current form as introducing a new  
          and conflicting category of interpreter that could interpret at  
          depositions - the registered court interpreter, thus conflicting  
          with current law Labor and Government Code sections requiring  
          the exclusive use of certified and provisionally certified  
          interpreters in workers' compensation settings. DIR notes that  
          registered court interpreters are not a category of interpreter  
          authorized for payment at workers' compensation proceedings  
          under the Labor and Government Codes. 


          Consequently, DIR is unclear whether services by registered  
          court interpreters in depositions are permitted or compensable.  
          Additionally, while DIR has the authority to create a fee  
          schedule as it applies to certified and provisionally certified  
          interpreters, the fee schedule would not cover charges for  







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          registered court interpreters' services. Consequently, the fees  
          they could charge would technically not be limited by the  
          adopted interpreter fee schedule. As a result of these issues,  
          it is likely that employers will object to pay for these  
          services, forcing registered court interpreters to file liens  
          for payment and increasing lien litigation to determine whether  
          employers' are obligated to pay for their services and to  
          determine the reasonableness of their charges.


          DIR data indicate that that in 2015, roughly 28,000 liens were  
          filed in the system relating to interpreter services. Assuming  
          that this bill were to impact five percent of the interpreter  
          service liens filed annually, DIR concludes that liens could  
          increase by 1,400 additional liens per year. DIR data indicate  
          that, excluding the cost to the Division itself, liens cost  
          roughly $1,000 each to the system. Consequently, costs to the  
          workers compensation system could increase by $1.4 million.  


          The Division would also incur additional costs as a result of  
          the liens resulting in $876,000 initially and $815,000 ongoing  
          as a result of adding additional judge teams to handle the  
          additional lien litigation workload resulting from the bill.


          However, under current law, registered court interpreters are  
          defined and likely already providing services in the California  
          workers' compensation system. Under Government Code Section  
          68561(d), registered court interpreters are interpreters who  
          have been qualified by the Judicial Council to interpret for a  
          language where no certification is available. Certification is  
          only currently available for 14 spoken languages: Arabic,  
          Eastern Armenian, Western Armenian, Cantonese, Japanese, Khmer,  
          Korean, Mandarin, Portuguese, Punjabi, Russian, Spanish,  
          Tagalog, and Vietnamese. Under current law, if an injured worker  
          requires interpretive language services for a language that is  
          not certified, such as Urdu or Farsi, a provisionally certified  
          interpreter would interpret that language.


          In other words, the bill does not appear to create a new  
          category of interpreter. Registered court interpreters are  
          already defined, and thus are likely seeking payment in the  
          workers compensation system (as provisionally certified  







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          interpreters). The bill does not increase the need for language  
          interpretation for languages where a certification is available  
          or where a certification is not available. Therefore, the extent  
          to which this bill would result in additional liens (and thus  
          additional costs to the department) is unclear. Moreover, it is  
          possible that the impact of this bill would be a reduction of  
          liens. If even a small number of liens are currently filed on a  
          fraudulent basis by non-certified interpreters (or by certified  
          interpreters using non-certified interpreters), requiring  
          identification would hinder the ability of non-certified  
          interpreters to provide and bill for services illicitly as  
          certified interpreters. This, in turn, would inhibit the ability  
          of fraudsters to file liens. 




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