Parker, Kern, Nard & Wenzel
Legal Updates

Challenging Market Rate for Interpreters at Medical Treatment Appointments

Lawrence A. Keller

When encountering billing for interpreting services for medical appointments there appears to be only one side to the rate argument:“market rate.” Economic principles of supply and demand are selectively applied to justify leaving fee schedule behind and charging the higher market rate. In rural areas the argument for higher rates is that there are so few interpreters that those providing services may charge a higher rate. In more densely populated urban areas though, the argument for market rate is unrelated to the supply of interpreters. Instead, the high demand for interpreting services is often given as the reason for higher rates. Although there are certainly instances where market rate is reasonable and deserved, it is the only rate charged in current lien demands. How can market rates for medical treatment appointments be challenged in this circular economic reasoning?

Because of the comparatively modest size of most interpreting lien claims they are often settled rather than litigated. The obligation of employers to pay for interpreters at medical treatment appointments is now codified in 8 CCR 9795.3(a)(2). Where an interpreter is utilized on a lien basis they have a high hurdle to get over before their fee is even considered. A lien claimant must first demonstrate that 1) the services were reasonably required, 2) that the services were actually provided, and 3) that interpreting was performed by someone qualified to do so. Jose Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228.

If a lien claimant meets that burden, then they must also demonstrate the reasonableness of their charges. The Code of Regulations has long provided fees presumed to be reasonable for interpreting services in 8 CCR 9795.3, but these did not to apply to medical treatment appointments. The 2013 amendments to 8 CCR 9795.3 including medical treatment appointments among those events where an employer is liable for interpreter fees also meant that interpreter “fee schedule” may apply to fees for interpreting medical treatment appointments. That regulation states in relevant part:

8 CCR 9795.3(b) The following fees for interpreter services provided by a certified or provisionally certified interpreter shall be presumed to be reasonable:

(2) For all other events listed under subdivision (a), interpreter fees shall be billed and paid at the rate of $ 11.25 per quarter hour or portion thereof, with a minimum payment of two hours, or the market rate, whichever is greater. The interpreter shall establish the market rate for the interpreter's services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services.

Prior to the inclusion of medical treatment appointments in 8 CCR 9795.3, interpreter fee schedule was used only as guidance in determining what might be a reasonable fee for a medical treatment appointment. The fee schedule is no longer mere guidance, but governs interpreter fees at medical treatment appointments. However, it also makes the job easier for lien claimants. Once a lien claimant satisfies the three requirements from Guitron, they no longer need establish the reasonableness of billing at fee schedule.

A lien claimant may still pursue their market rate. Market rate is “that amount an interpreter has actually been paid for recent interpreter services provided in connection with the preparation and resolution of an employee's claim.” 8 CCR 9795.1. When a lien claimant argues that market rate is applicable, the reasonableness of that amount is not assumed however.

The recent revisions to 8 CCR 9795.3 do not remove the need to prove-up the market rate. Market rate must still be demonstrated by documentation, including “a list of recent similar services performed.” It would not be evidence of recent similar services to use an ill-defined paid invoice to establish market rate for all doctor’s appointments no matter their nature. Very often evidence will consist of vague descriptions of the appointments at which services were provided. The evidence must show the services were similar to be evidence of the market rate. An initial psychiatric evaluation for example is not a reasonably similar to a brief orthopedic follow-up appointment. Recent prohibitions on dissemination of medical reports to non-physicians may increase the lien claimant’s burden in this regard.

The regulations also do not apply the two-hour minimum to market rate. The “interpreter fees shall be billed and paid at the rate of $ 11.25 per quarter hour or portion thereof, with a minimum payment of two hours, or the market rate, whichever is greater.” 8 CCR 9795.3 (emphasis added). Billing for market rate should therefore be challenged where the appointment was a brief one. Guitron expressly commented on the fact that a 2-hour minimum is not always warranted when some may only take 10 to 15 minutes. Jose Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 248 (citing Di Giuseppe v. Workers' Comp. Appeals Bd. (Menjivar) (2002) 67 Cal. Comp. Cases 1003 (writ denied)). In strictest terms the rate is dollars per unit of time, and the minimum is separate. In discussing the fee schedule amount the regulation lays out both a rate and a minimum period over which that rate is to be paid ($11.25 per 15 mins, 2 hour minimum).

In allowing a market rate there is no provision for a minimum time. Although lien claimants will argue that their market rate encompasses a two-hour minimum, it does not make that minimum reasonable or allowable. However, it must be remembered that the likely minimum reimbursement for a certified or provisionally certified interpreter would be $90, because the greater of $90 or market rate is paid.

The inclusion of medical treatment appointments within 8 CCR 9795.3 strengthens the fee schedule as a presumptively reasonable rate for interpreter services at medical treatments. Defendant should continue to challenge market rate assertions where they are unwarranted.