OSTI’s Advocacy Regarding the Worker’s Compensation Division’s Medical Interpreter Policies*

* Note: While the Worker’s Compensation Division (WCD) oversees the medical side of Worker’s Comp claims, the Worker’s Compensation Board (WCB) oversees the administrative hearing side of claims, and has a different payment policy. This advocacy was specifically for the medical side.

As some of you may have heard, last year the Oregon Worker’s Compensation Division (WCD), which oversees medical appointments for patients seeking treatment for injuries sustained on the job, modified their interpreter payment policy so as to increase the amount paid to interpreters for their work during WCD medical appointments. This was good news! However, after reviewing the new payment policies, two glaring issues became apparent:

  1. There was a major discrepancy between the WCD’s own definition of “Interpreter.” In the “Definitions” section, it is plainly stated that a friend or family member may not act as an interpreter during a medical appointment. However, later in the policy, the section on interpreter services begins with a different definition of “interpreter” which in fact, encourages claimants to invite a friend or family member to interpret. As you no doubt know, inviting interested, untrained parties to act as ad hoc interpreters is in no way a best practice, and can result in dire physical and legal consequences for the claimant.
  2. Interpreters for medical appointments were not guaranteed payment. The policy makes a distinction between several kinds of appointments and, for some appointments a no-show or too-late-show by either claimant or provider, and late cancellations, would result in non-payment for interpreters. What’s more if the claim is denied and the interpreter is billing the insurance company, the interpreter would not be paid. That section invites interpreters to bill the claimant(!) which is one of the Title VI violations mentioned earlier. While payment for no-shows and late cancellation falls under industry standard and professional practices, non-payment for denied claims would make an interpreter interested in the outcome of a claim, which nullifies his or her impartiality.

OSTI Vice President, Jazmin Manjarrez, brought these issues to the OSTI Board’s attention several months ago. She contacted the WCD’s Rules Coordinator, Fred Bruyns, to ask how to go about changing these rules.

 

After months of correspondence and a formal request for a rules change, on Monday 11/27/17, OSTI member Joan Milligan and OSTI Advocacy Committee Chair Jessica Dover attended the annual Worker’s Compensation Division’s Administrative Rule Revision meeting in Salem Oregon. Joan took the lead on researching and organizing materials for this meeting; she painstakingly reviewed the entire WCD policy to see if there were more issues to bring to their attention (and there were), and she researched and printed the section of Title VI which addresses linguistic equal access for LEP persons and, specifically, the requirement for professional interpreters, which supports our arguments. In fact, that section gives specific examples of violations and one references a government agency that expects LEPs to bring a friend or family member to interpret for them.

The WCD has published Joan and Jessica’s pre-prepared notes and Joan’s highlighted Title VI printout on their website, which you can access here: http://wcd.oregon.gov/laws/Documents/rule-meetings/2017/2017-11-27-009-010-015/advice-OSTI-2017-11-27-updated.pdf

In attendance at the 11/27/17 meeting, in person and telephonically, was a mixture of about 20 representatives from the WCD, insurance companies, providers, health care systems, at least one interpreting agency, and, of course OSTI. There were many items on the agenda that had nothing to do with interpreters, however please see pages 16 and 17 of this document, as that is when Joan and Jessica were given the opportunity to present their arguments and notes: http://wcd.oregon.gov/laws/Documents/rule-meetings/2017/2017-11-27-009-010-015/Agenda-RAC-2017-11-07.pdf

For an audio recording of Jessica and Joan’s comments to the board, skip to time signature 2:02:00 here: http://www.cbs.state.or.us/external/mlac/rulemaking/2017/RAC-2017-11-27-009.mp3

Joan and Jessica tailored their arguments to the issues on the WCD agenda. While WCD representatives themselves seemed interested, receptive, and supportive. The main pushback came from some providers, who preferred to use their in-house staff to interpret whenever possible as opposed to certified interpreters, and the insurance companies, who emphasized patient “choice” of interpreter (the logic being that the patient can choose their provider, so they should be able to choose their interpreter). Jessica and Joan pointed out that if a patient does not have guidance as to where to find a certified and qualified interpreter, they are most likely going to bring an interested party (a friend, coworker, supervisor, or family member), which is ethically unacceptable. Expediency was another reason that health care systems and providers gave for why they must use the claimant’s supervisor or family member as an interpreter, as many claims start as emergency situations after an on-the-job injury. Joan and Jessica pointed out that telephonic and video remote interpreters are always an option in that situation, and that since these medical appointments are quasi-legal and may result in a complaint and ultimately a hearing, great care must be taken with even the most basic of intake forms to ensure that expediency does not trump quality. They emphasized the importance of accuracy and compliance with Title VI of the Civil Rights Act. Most of the advocacy around the no-show and cancellation policies occurred during the meeting breaks, in conversation with Fred Bruyns of the WCD. Given the limited time assigned to these issues, it was not possible to address every bullet point of Joan and Jessica’s pre-prepared notes, however the main issues were addressed and their presentation seemed to have a positive impact on the Worker’s Comp Division, as Mr. Bruyns wrote this follow up on Tuesday 11/28/17:

Thank you for joining us yesterday and for your advice on use of interpreter services and payment for those services in the workers’ compensation system. I have distributed your document, as well as the Title VI information, to additional staff members here – it is also posted to our website.

We think that before we can consider some of your recommendations, we should look into Title VI requirements and assess whether we are in compliance with the Civil Rights Act. Clearly, if we are not, that would be a serious matter and necessitate some changes.

OSTI will continue to follow up on the WCD’s progress on their Title VI review and the implementation of our changes to their policies.

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