By Jim Sams, Senior Editor
The California Workers' Compensation Interpreters Association on Tuesday blasted Zenith National Insurance Co. for contending that interpreting services for the purpose of treating an injured worker are not reimbursable.
But an attorney for the carrier fought back in a telephone interview with WorkCompCentral, saying there is no fee schedule for interpreting services during treatment visits because no law requires or permits insurers to pay for such...
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Comments (11):
“Zenith is outright wrong in this case. Interpreters need to be provided in almost all medical treatment. The only treatment I do not authorize an interpreter is the standard physical therapy appointments. The P.T. examinations an interpreter is needed, however, in all other p.t. visits they are unnecessary and office staff should be sufficient. Zenith would love one of my cases in which I had to pay an English to American sign language interpreter and an American sign language to Chinese sign language interpreter. It cost me roughly $ 650.00 per appt and they don't even have a medical degree!”
By: Mary Jones, 03/09/2005 03:32:14 pm
“Since the employer hires non English speaking employees - then maybe the employer should pay for those services - regardless if the claim is admitted or not.
Just my 2 cents worth today”
By: Gary Tobia, 03/09/2005 04:09:10 pm
“So it should cost more to hire a nonenglish speaking worker ? Should we work that into the premium calculations? Should exotic languages cost more than spanish workers ? Should employment include an english proficency test? You have lost 1/4 million jobs already,for three years in a row cost exceeded income by 35% with this "just pay for it all attitude". That is why it costs three times as much to treat an injury in California as other states (OK excluding Texas)and you get poorer outcomes. When is the idea going to sink in that the system is well and truely broken and it is hurting everyone but the Docs and Applicant attornies.This constant whining about how it is all due to the greedy insurance companies is a fantasy, that the numbers just do not support. Grow up, demand responsible change and demand the leigilators act like adults instead of spoiled children for hire. ”
By: Kelly Hirn, 03/09/2005 05:48:35 pm
“LC 4600 states that interpreter services shall be reimbursable when the patient "submits" to a physician examination; it could be argued by the insurance company that "submit to" means by a specific order to be examined but not routinely for follow up visits. However, one could also argue that since the patient must follow up with the physician for treatment and failure to do so is "noncompliance", then the patient is "submitting" to all treatment visits recommended by the physician. Therefore, intrepretation services "shall be" reimbursable. ”
By: Susan Callihan, 03/09/2005 04:17:35 pm
“I think we would have no problem paying for interpretors in reasonable circumstances. But I see applicant oriented doctors advertise they have
bi-lingual staff yet still get interpretor bills with two hour minimums at $90 per hour. We know that they hang around the office all day and are with each patient at most 1/2 hour, so are able to bill 20 "hours" per day. They are very smug that there is a grey area around their services and are exploiting it for all it's worth. It's good work for now but I smell the stink of deat Voc-rehab counselors and Chiropractors in their future.”
By: Reynold Roth, 03/09/2005 05:31:26 pm
“John, with all due respect, you first need to get the facts right. The interpreter's fees are set by labor code 9795.3 at $45.00 per hour not at $90.00 per hour as you indicated.
With regards to your comments that interpreters "are exploiting it for all it's worth," just like in any profession, there are some good apples and there are some bad apples. It is unfair to judge the interpreting profession as a whole based on the abuse of a few.”
By: Rod Olguin, 03/09/2005 11:51:26 pm
“It seems to me the fair thing to do is if you pick the doc you pay the fee. If the applicant or their attorney pick the doc, pick one that speaks their language or be prepaired to pay for the services of an interperator on their own.What happened to the english as the language for California rule that was in place previously ? ”
By: Kelly Hirn, 03/09/2005 05:36:53 pm
“What deminsion have you been hiding in? California has the largest hispanic population compared to any other state. there is not such rule in place for manditory english. We do not even have this rule in the public schools. (FYI I am 3rd generation Mexican)”
By: yolanda weniger, 03/09/2005 06:10:21 pm
“WELL APPLE I HAVE BEEN IN THIS DIMENSION FOR OVER A DECADE AND HAVE SEEN THE REQUIREMNTS FOR FOREIGN LANGUAGE NOTICES CHANGE AND DO RECALL WHEN THE STATE WENT FROM MULTI-LINGULA TO MONO-LINGUAL AND BACK AGAIN.I ALSO RECALL THE MOVE TO MAKE EBONICS A LANGUAGE. SHALL WE FIND INTERPERATORS FOR THAT TOO ? AS TO LANGUAGE I AM A SIXTH GENERATION AMERICAN AND OUR HOMES ARE MULTI-LINGUAL TOO (INCLUDING FROM THE FIRST GENERATION,"ENGLISH").I STAND BY MY ORIGIONAL PREMISIS. A LITTLE MORE REALITY AND A LOT LESS POLITICAL CORRECTNESS.I DON'T THINK THE RACIAL QUALIFICATION ON YOUR PART WAS APPROPRIATE.”
By: Kelly Hirn, 03/10/2005 04:58:40 pm
“Because of the importance of having qualified foreign language interpreters present when the injured worker is examined, be it for a medical legal evaluation or treatment, I am including Points & Authorities as well as additional material, on the issue.
If the information does not fully appear, you may contact me at jgell29481@aol.com for further information. The information might not copy in the format it has been used, successfully.
POINTS AND AUTHORITIES
The law requires that, in this case, all defense medical reports, not be admitted into evidence. The Legislature has set mandatory requirements for medical examinations, set by the defense, where there is a need for a foreign language interpreter. In addition to legislation, the Industrial Medical Council has set forth requirements vis-a-vis qualified medical examinations where an interpreter is required or present.
The applicant, in this case, does not readily or proficiently speak English, if at all. The employer and the carrier are aware of the need for having a foreign language interpreter to assist the applicant in defense medical examinations.
1. LABOR CODE AND CALIFORNIA CODE OF REGULATIONS
A qualified interpreter is required where, at a defense medical examination, the employee does not speak English, or does not speak it proficiently. Labor Code §4600.
A qualified interpreter is defined as a language interpreter certified, or deemed certified, pursuant to the Government Code. Labor Code §4600; 8 CCR §9795.1 (See, inter alia, Labor Code §5811).
An interpreter is required when the applicant does not speak English or at least, lacks proficiency in the English language such that he feels more comfortable with one in attendance. 8 CCR §9795.3(a).
Injuries sustained after January 1, 1994 require certified interpreters at defense medical examinations in order to guarantee the proficiency of the medical reporting. Pamela Foust, Lien Claims in Workers Compensation Cases, Third Edition, 1999, p. 120.
Proficiency re the medical report is important because the medical-legal evaluation of the doctor is the testimony of the doctor which is presented as evidence, and the report is based on his evaluation of the applicant.
In order to ensure meaningful communication with the applicant, and thereby render a report reliable, certified interpreters are required just as they are for all judicial proceedings. Ibid., p. 223.
2. GOVERNMENT CODE
The Government Code has adopted standards for interpreters which apply to workers compensation claims. Labor Code §4600; 8 CCR §9795.1.
The Government Code discusses language assistance regarding oral or written interpretations translating into English a language other than English, where a party or witness cannot speak or understand English or who can do so only with difficulty. Gov.C. §11435.05.
When an applicant is being examined by a defense selected physician it is of the utmost importance that the injured party understand all that is asked. Quite frequently a doctor will use words which are not in the daily vocabulary of the ordinary person; this, when coupled with the fact that the person being examined does not speak English, or can do so only with difficulty, reflects the necessity for an certified interpreter. When the examination is a psychiatric evaluation, it is likewise important that a certified interpreter assist with all written documentation. The reasons for this are apparent, and need not be expounded.
An interpreter used in a defense medical examination must be certified in accordance with Gov.C. §11435.55(b), there are no exceptions. See, also, Gov.C. §11435.20(b).
The requirements to become certified in a foreign language are very specific, and may be found in Gov.C. §68562(a) - (g). The requirements may also be found, together with a complete list of interpreters, certified and decertified, on the Internet, at the following:
1. cps.ca.gov/resources_directories/interpreters/master_listing_database.asp
2. courtinf.ca.gov/programs/courtinterpreters/certinterp6
3. courtinf.ca.gov/programs/courtinterpreters/ctintdb,
as well as other cites recognized by the Judicial Council, the State Personnel Board, and the State Controller. As one can see, this area of law is extensively regulated, due to the serious nature of the consequences should a foreign language interpreter not be certified.
3. INDUSTRIAL MEDICAL COUNSEL
In 1997 the Industrial Medical Council published its second edition of the Physicians Guide to Medical Practice in the California Workers Compensation System (the Guide). The Guide was prepared by the Industrial Medical Council (IMC) to inform the medical community about important laws, regulations and procedures concerning the California workers compensation system .
It is clear that the medical-legal evaluation is evidence in a legal dispute. Thus, certain rules are established which must be followed to ensure the integrity and efficacy of the report. The standards and requirements set out by the IMC reflect these concerns. The Guide has been incorporated into the Labor Code. See, Labor Code §4628.
The legal requirements for a medical-legal evaluation (variously referred to as the QME examination) is set out in Chapter 6, pages 91-108 of The Guide. Specifically, the following is relevant concerning the issue at bar:
a. The physician who signs the report must be the only person who examines the injured employee or participates in the non-clerical preparation of the report... .The physician who signs any medical-legal report must personally take a thorough history... .In some cases, the physician may have an assistant make an initial outline of the patients history... . However, the physician must review the excerpts and outline with the patient and make any necessary additional inquiries... The name, qualifications, and role of any people involved in making outlines or excerpts, in performing diagnostic tests, or in drafting the report, must be disclosed in the report. Guide, page 94.
The required elements of a medical-legal report are set forth, in outline form, on page 98. Specifically, the report must Disclose the name and qualifications of anyone who assisted in report .
Inasmuch as we are here discussing the use of a certified foreign language interpreter, the IMC gets more specific regarding the entire examination process:
a. Your report must disclose the name, qualifications, and roles of other individuals who participated in the evaluation. Guide, page 107.
If the name and qualification of the interpreter is not included then it stands to reason the report is faulty. A violation of these rules and guides can result in the suspension or termination of the doctor as a Qualified Medical Evaluator. Labor Code §4628.
4. ST. CLAIR
In his California Workers Compensation Law and Practice, Sixth Edition, Sheldon St. Clair discusses this very issue at §19:220, page 19-71, stating Your report must disclose the name and qualification, and roles of other individuals who participated in the examination by: Taking and outlining the medical history. ... Administering diagnostic studies. (Emphasis in original)
Interestingly, St. Clair sets out the one caveat most defense doctors ignore:
Violation of this provision can result in your suspension or termination as a Qualified Medical Examiner. (Labor Code §139.3, 8 CCR §4628).
CONCLUSION
It is clear that if a certified medical interpreter is not present, and the doctor and applicant do not share a common language to any significant extent, it simply will not be possible for the doctor to produce a report which is capable of proving disputed medical issues. He will not be able to take a history of the injury and the patients complaints in accordance with Labor Code §4628 and 8 CCR §10606.
In addition, if there was an interpreter present assisting the physician, and the name and qualifications of the person in not set out as mandated, the report is not admissible in any proceeding.
The doctor(s), subject to this Motion, did not have a certified interpreter to assist in the doctors examination, or if one was present, was not identified as required and, therefore, the medical report is not admissible.
Endnotes
1. Labor Code §4600 states, in part pertinent, Where at the request of the employer, the employer's insurer, the administrative director, the appeals board, a workers' compensation judge, an employee submits to examination by a physician and the employee does not proficiently speak or understand the English language, he or she shall be entitled to the services of a qualified interpreter in accordance with conditions and a fee schedule prescribed by the administrative director. These services shall be provided by the employer. For purposes of this section, "qualified interpreter" means a language interpreter certified, or deemed certified, pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code.
The salient portions of this section of Labor Code §4600, vis-a-vis this Motion have to do with the necessity that there be a certified interpreter in attendance for a defense medical examination. This language is mandatory since it commands that the interpreter shall be present. See, also, Labor Code §15: Shall is mandatory..
2. §9795.1 Definitions. As used in this article: (a) "Certified" means an interpreter who is certified in accordance with subdivision (e) of Section 11513 of the Government Code or Section 68562 of the Government Code.
3. §5811(b) It shall be the responsibility of any party producing a witness requiring an interpreter to arrange for the presence of a qualified interpreter. A qualified interpreter is a language interpreter who is certified, or deemed certified, pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2, of Section 68566, of the Government Code
...
A qualified interpreter may render services during the following:
...
(3) During those setting which the administrative director determines are reasonable necessary to ascertain the validity or extent of injury to an employee who cannot communicate in English.
4. §9795.3(a). Fees for Interpreters. Fees for services performed by a qualified interpreter, where the employee does not proficiently speak or understand the English language, shall be paid by the claims administrator for any of the following events: (1) An examination by a physician to which an injured employee submits at the request of the claims administrator, the administrative director, or the appeals board.
5. Effective as to injuries claimed or sustained after January 1, 1994, it is required that interpreters on medical examinations be certified in order to guarantee their proficiency. However, for cases involving injuries prior to this date, no such requirement existed. Unfortunately, the lack of regulation in this area in the past may have resulted in medical reports that either did not constitute substantial evidence or contained a material false and inaccurate history due to errors committed by unqualified interpreters. §3.7 (1).
6. An interpreter is not required unless the applicant does not speak English or, at least, lack proficiency in the English language such that he feels more comfortable testifying in his natural language. Occasionally, even though the applicant will testify in English, an interpreter is present to act as a back-up in case his services are needed.
7. §11435.05. As used in this article, "language assistance" means oral interpretation or written translation into English of a language other than English or of English into another language for a party or witness who cannot speak or understand English or who can do so only with difficulty.
8. §11435.20(b). If a party or the partys witness does not proficiently speak or understand English and before commencement of the hearing or medical examination requests language assistance, an agency subject to the language assistance requirement of this article shall provide the party or witness an interpreter.
9. §68562. (a) The Judicial Council shall designate the languages for which certification programs shall be established under subdivision (b). The language designations shall be based on (1) the courts' needs as determined by the language and interpreter use and need studies under Section 68563, (2) the language needs of non-English-speaking persons in the courts, and (3) other information the Judicial Council deems relevant. (b) By July 1, 1996, the Judicial Council shall approve one or more entities to certify Spanish language interpreters and interpreters for as many other languages designated under subdivision (a) as practicable by that date. The Judicial Council may give provisional approval to an entity to examine interpreters and establish a list of recommended court interpreters pending final approval of one or more certification entities. Certification entities may include educational institutions, testing organizations, joint powers agencies, or public agencies. The Judicial Council shall adopt and publish guidelines, standards, and procedures to determine which certification entities will be approved to test and certify interpreters. (c) The Judicial Council shall develop and implement procedures to administer the list of recommended court interpreters previously established by the State Personnel Board and the list established by an entity provisionally approved under subdivision (b). The Judicial Council shall develop procedures and standards for certifying without reexamination interpreters on the list of recommended court interpreters (1) previously established by the State Personnel Board, or (2) established by an entity provisionally approved under subdivision (b). Certification of these interpreters shall be based on criteria determined by the Judicial Council, such as recent interpreting experience, performance in court or at administrative hearings, training, and continuing education. (d) The Judicial Council shall adopt standards and requirements for interpreter proficiency, continuing education, certification renewal, and discipline. The Judicial Council shall adopt standards of professional conduct for court interpreters. (e) The Judicial Council shall adopt programs for interpreter recruiting, training, and continuing education and evaluation to ensure that an adequate number of interpreters is available and that they interpret competently. (f) The Judicial Council shall establish guidelines for fees or shall set and charge fees for applications to take the court interpreter examinations, for renewal of certifications, for certification of interpreters on the list of recommended court interpreters, for maintaining interpreters on the recommended list until January 1, 1996, and for other functions and services provided under this article. All fees and other revenues received by the Judicial Council under this article shall be transferred promptly to the Controller, and shall be placed in the Court Interpreters' Fund, which is hereby created, the moneys in which shall be available to carry out the purposes of this article upon appropriation by the Legislature. (g) Each superior and municipal court may adopt local rules to impose additional requirements, standards, examinations, and programs as necessary for equity or to recognize local conditions.
10. Interpreters are certified as either a Court Interpreter or an Administrative Hearing Interpreter, or both, for their overall competence in consecutive and simultaneous interpretation and in slight translation, by the State Personnel Board which has delegated the task of formulating and administrating the exam to Cooperative Personnel Services. This agency publishes a book, a copy of which may be ordered, listing the names and addresses of all certified interpreters from 1979 to the present. Supplements are issued on a regular basis as additional interpreters become certified. Interpreters who are neither certified, nor deemed certified in accordance with the Government Code, may not interpret in official proceedings before the WCAB. Lien Claims in Workers Compensation Cases §6.2(c).
See, Government Code §§11513: 68566. Cooperative Personnel Service is located at 191 Lathrop Way, Suite A, Sacramento, CA 95815 .
11. §68566. A natural person who either (1) holds a valid certificate as a certified court interpreter issued by a certification entity approved by the Judicial Council, or (2) until January 1, 1996, is named and maintained on the list of recommended court interpreters previously established by the State Personnel Board or established by an entity provisionally approved under subdivision (b) of Section 68562, shall be designated a "certified court interpreter." No other person or entity shall use the title "certified court interpreter" or represent that he or she or it is certified to interpret in or for the courts.
12. Preamble to the 1994 edition, in part pertinent.
13. Responsibilities of physician signing medical-legal report. (b)...[A]nd shall disclose the name and qualifications of each person who performed any service in connection with the report.. . (e) Failure to comply with the requirements of this section shall make the report inadmissible as evidence... (h) Knowing failure to comply with the requirements of this section shall subject the physician to contempt pursuant to the judicial powers vested in the appeals board
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ADDITIONAL INFORMATION
Section 752. When Interpreter Required.
(a) When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom he or she can understand and who can understand him or he shall be sworn to interpret for him or her.
ADMINISTRATIVE OFFICE OF THE COURTS
Effective January 1, 1993, the Judicial Council assumed responsibility for certifying and registering court interpreters and for developing a comprehensive program to ensure an available and competent pool of qualified interpreters.
Registered Interpreters
Interpreters of languages for which there is no state certifying examination are called registered interpreters of non-designated languages. They must pass an English proficiency examination covering basic vocabulary, grammar, word usage, reading comprehension, and comprehension of materials about rule 984.4 of the California Rules of Court and sections 18 and 18.1 of the Standards of Judicial Administration. They also must submit an application to register with the council, attend an orientation workshop, and meet the renewal requirements developed for certified court interpreters. In addition, in 1998 the council approved a new rule of court establishing a code of professional conduct for court interpreters.
GOVERNMENT CODE
11435.20. (a) The hearing, or any medical examination conducted for the purpose of determining compensation or monetary award, shall be conducted in English.
11435.35. (a) The State Personnel Board shall establish, maintain, administer, and publish annually, an updated list of certified medical examination interpreters it has determined meet the minimum standards in interpreting skills and linguistic abilities in languages designated pursuant to Section 11435.40. (b) Court interpreters certified pursuant to Section 68562 and administrative hearing interpreters certified pursuant to Section 11435.30 shall be deemed certified for purposes of this section.
11435.55. (a) An interpreter used in a hearing shall be certified pursuant to Section 11435.30. However, if an interpreter certified pursuant to Section 11435.30 cannot be present at the hearing, the hearing agency shall have discretionary authority to provisionally qualify and use another interpreter. (b) An interpreter used in a medical examination shall be certified pursuant to Section 11435.35. However, if an interpreter certified pursuant to Section 11435.35 cannot be present at the medical examination, the physician provisionally may use another interpreter if that fact is noted in the record of the medical evaluation.
68560. The Legislature finds and declares that:
(e) The Legislature recognizes that the number of non-English-speaking persons in California is increasing, and recognizes the need to provide equal justice under the law to all California citizens and residents and to provide for their special needs in their relations with the judicial and administrative law system.
(f) Competent interpreter services in the courts and judicial and administrative agencies should be provided through programs to recruit, train, test, certify, and evaluate interpreters. Continuing education and evaluation would also help ensure adequate interpreter services to the courts.
© 2002 California Healthcare Interpreters Association.
The fundamental purpose of healthcare interpreters is to facilitate communication between two parties who do not speak the same language and do not share the same culture. Various barriers to cross-cultural communication exist. These include language differences, language complexity, and differences in cultural norms, in addition to organizational or broader systemic barriers facing LEP patients. This section describes roles and strategies available to interpreters within the healthcare encounter to help the parties address these barriers.
Massachusetts Medical Interpreters Association Eighth Annual National Conference on Medical Interpreting
The term certified interpreter has been often misused by administrators and other policymakers when describing strategies for access to, and ensuring quality of, health care for non-English speakers. At the same time, many interpreters apply the same label to themselves knowing that it increases their desirability in the eyes of potential employers. Some states have gone so far as to pass legislation requiring that interpreters used in hospital settings be certified. Yet for all practical purposes there is no certification for medical interpreters in this country.
Advance the skills of the advanced interpreter working toward certification Increase understanding of diverse cultural/linguistic minority groups and what actions will promote quality medical interpreting within their communities Examine the cultural and ethical challenges in the medical interview and how knowledge of such issues can best be articulated/demonstrated Assist administrators in the effective provision of interpreter services Enhance awareness of all stakeholder issues throughout various health care systems
B) All Tests Are Not Created Equal: A Comparison of Different Interpreter Assessments and Their Applications
This presentation will describe different types of interpreter assessments, with a focus on certification tests, and examine their applications and uses for interpreters interested in furthering their professional development. There are now not only a multitude of different tests available, but also many different claims being made regarding certification, so how can an interpreter or an employer know which tests are valid assessments of the interpreter's skills and which test will best meet their needs? In proposing answers to those questions, the presentation will address such issues as validity and reliability, the different types of validity and their respective value. Since Medical Certification is presently a goal for most healthcare interpreters, that high level assessment will be addressed in particular detail.
E) Anatomy of a Medical Assignment
The medical world has myriad words that are unfamiliar to lay people. Many of these words relate to the anatomy of the human body. We will discuss the basics of the human anatomy and will even delve into the intricacies of our structure. You will employ the knowledge you have gained in using the terms appropriately in a model scenario. Finally, there will be a generous questions and answer period.
I) Criterion Referenced Testing of Medical Interpreters Using the Federal Court
Model
Criterion Referenced Testing of medical interpreters, using the Federal Court Interpreter Certification Model will ensure that interpreters have the language proficiency in English and Spanish required, the interpreting techniques and interpreting performance, and the cultural and ethical awareness required to be able to deliver efficient and effective interpreting services in the medical setting. Criterion referenced testing involves assuring that a test meets the criterion for performance agreed upon by an expert panel of all stakeholders to ensure that the difficulty level and content of the examination, as well as standards of performance (passing and failing) authentically represent the actual needs of the patients, caregivers, and other participants. The foci will be on the steps required for developing a valid and reliable set of examinations as well as developing an objective rating system that can guarantee systematic and reliable performance scoring. Pyschometric principles of language and interpreting proficiency testing will be discussed as they apply to the medical interpreting setting.
V) Retraining Spanish Interpreters
Spanish Interpreters need to be paid particular attention to guarantee professional interpreter
services. Some of the problems that have to be dealt with are: false cognates, spanglish,code switching, and hyperformality, among others. Also, many interpreters have weak Spanish language skills and refresher, vocabulary, syntax and grammar reviews may be necessary.
There are two schools of thought on which mode of interpreting simultaneous or consecutive a medical interpreter ought to use when interpreting for a patient and a health care provider. Professionals and scholars have made excellent arguments on both sides of the coin of this polemical issue. However, many still remain at odds with each other. Is one mode actually better than the other? The answer to this question is YES. This presentation will give an overview of the arguments in favor of and against each mode of interpreting, make a case for which one is the right mode for medical interpreting and discuss various interpreting techniques that assist in preserving doctor-patient dynamics.
”
By: Joseph Gellman, 03/09/2005 09:20:33 pm
“this is a test”
By: Anonymous, 03/10/2005 10:06:36 pm
