BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1379 (Mendoza) - Workers' Compensation: depositions: interpreters ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 29, 2016 |Policy Vote: L. & I.R. 5 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: April 25, 2016 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- 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. SB 1379 (Mendoza) Page 1 of ? 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. SB 1379 (Mendoza) Page 2 of ? 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 SB 1379 (Mendoza) Page 3 of ? 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 SB 1379 (Mendoza) Page 4 of ? 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 SB 1379 (Mendoza) Page 5 of ? 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. -- END --