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.
SB 1379 (Mendoza) Page 1 of
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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.
SB 1379 (Mendoza) Page 2 of
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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
SB 1379 (Mendoza) Page 3 of
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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
SB 1379 (Mendoza) Page 4 of
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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
SB 1379 (Mendoza) Page 5 of
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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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