WSR 16-15-059
PROPOSED RULES
OFFICE OF
ADMINISTRATIVE HEARINGS
[Filed July 18, 2016, 9:27 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-03-076.
Title of Rule and Other Identifying Information: WAC 10-08-150 Adjudicative ProceedingsInterpreters, chapter 10-08 WAC contains the model rules of procedure which RCW 34.05.250 requires the chief administrative law judge (ALJ) to adopt for use by as many agencies as possible. The office of administrative hearings (OAH) is proposing to amend WAC 10-08-150 to ensure that OAH and other state agencies can effectively and efficiently engage interpreters for use before, during, and after administrative hearings.
Hearing Location(s): OAH, 2420 Bristol Court S.W., Olympia, WA 98502, August 23, 2016, at 10:00 a.m.
Date of Intended Adoption: September 20, 2016.
Submit Written Comments to: Ed Pesik, Deputy Chief ALJ, P.O. Box 42488, Olympia, WA 98504-2488, e-mail ed.pesik@oah.wa.gov, fax (360) 664-8721, by August 23, 2016.
Assistance for Persons with Disabilities: Contact Johnette Sullivan, Assistant Chief, ADA Coordinator, by e-mail johnette.sullivan@oah.wa.gov or (360) 407-2700.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: OAH seeks to fully implement the legislative intent in RCW 2.42.010 and 2.43.010 for the use of interpreters in administrative hearings. The proposal amends WAC 10-08-150 to: (1) Protect the rights of persons who are deaf, who are speech or hearing impaired, or cannot readily speak or understand the English language, in legal proceedings before administrative agencies; (2) adopt the term "appointing authority" in RCW 2.42.010 and 2.43.010 in lieu of "presiding officer"; (3) define "adjudicative proceeding" to ensure that OAH and other state agencies can effectively and efficiently engage interpreters for use before, during, and after legal proceedings on the record; (4) list factors to determine "good cause" under RCW 2.43.030; (5) clarify terms for modes of spoken language interpretation; (6) update the process for a non-English-speaking person to request a sight translation of the decision or order; and (7) clarify the process for a request by an impaired person for a visual translation of a decision or order.
The proposed amendments will allow for the use of properly qualified interpreters by OAH and other state agencies under both state and agency master contracts consistent with the technology and processes now available.
Additionally, this proposal includes the emergency rule change filed on June 8, 2016, amending WAC 10-08-150. See WSR 16-13-047.
Statutory Authority for Adoption: RCW 34.05.020, 34.05.250, 34.12.030, and 34.12.080.
Statute Being Implemented: WAC 10-08-150.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: OAH recommends that statutory language in chapters 2.42 and 2.43 RCW be updated. The term "impaired person" in RCW 2.42.110 is not a term in common usage. The definitions in RCW 2.42.110 of "qualified interpreter" and "intermediary interpreter" do not reflect the use of technology and current certifications. The definition in RCW 2.43.020 of non-English-speaking person is outdated. The term in current use in federal and state agencies is a limited English proficiency individual. Individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English can be limited English proficient, or "LEP."
Name of Proponent: OAH, P.O. Box 42488, Olympia, WA 98504-2488, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Ed Pesik, Deputy Chief ALJ, 2420 Bristol Court S.W., Olympia, WA 98502, (360) 407-2700.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule making does not result in any economic impact on small business or fiscal impact on school districts.
A cost-benefit analysis is not required under RCW 34.05.328. OAH's proposed rule amendment does not involve rules of any of the agencies identified in RCW 34.05.328(5) for which a cost-benefit analysis is required.
July 18, 2016
Lorraine Lee
Chief ALJ
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-08-150 Adjudicative proceedingsInterpreters.
(1) When an impaired person as defined in chapter 2.42 RCW or a non-English-speaking person as defined in chapter 2.43 RCW is a party or witness in an adjudicative proceeding, the ((presiding officer)) appointing authority shall appoint an interpreter to assist the party or witness throughout the proceeding. Appointment, qualifications, waiver, compensation, visual recording, and ethical standards of interpreters in adjudicative proceedings are governed by the provisions of chapters 2.42 and 2.43 RCW.
(2) An adjudicative proceeding under chapter 34.05 RCW includes a legal proceeding which occurs on the record, and also includes oral and written communications of a party to an agency proceeding, and the filing, issuance and entry of notices, motions, orders, decisions, petitions, and other documents. When a party or witness appears in a legal proceeding on the record, the appointing authority is the presiding officer, and otherwise the appointing authority is the agency head or designee.
(3)(a) The agency head or designee may make a predetermination that an interpreter is qualified to provide parties with a:
(i) Visual translation or sight translation of forms, notices, proposed exhibits, briefs and orders, either before or following the hearing; or
(ii) Visual or spoken-language interpretation of oral communication with the agency that is not on the record.
(b) The agency head or designee may maintain a list of interpreters who have been determined to be qualified to interpret before the agency.
(4) Relatives of any participant in a proceeding and employees of the agency involved in a proceeding shall not be appointed as interpreters in the proceeding. This subsection shall not prohibit the office of administrative hearings from hiring an employee whose ((sole)) function is to interpret at ((administrative hearings)) adjudicative proceedings on the record and as otherwise needed by impaired and non-English-speaking persons.
(5) The appointing authority shall appoint a qualified spoken language interpreter who is on the list of certified interpreters maintained by the administrative office of the courts (AOC), except as provided in this subsection. The appointing authority may find there is good cause to appoint a qualified spoken language interpreter who is not on the list of certified interpreters maintained by the AOC. "Good cause" includes, but is not limited to, consideration of the totality of circumstances and a determination by the appointing authority that:
(a) The current list of certified interpreters maintained by the AOC does not include an interpreter certified in the language spoken by the non-English-speaking person;
(b) The parties agree to the issue or motion;
(c) The motion or hearing is expedited or emergent;
(d) The matter involves general or procedural information;
(e) The matter involves sight translation of case-related documents including forms, notices, proposed exhibits, briefs, and orders, either before or following the hearing;
(f) The rescheduling of a hearing to appoint a certified interpreter would cause prejudicial delay;
(g) The certified interpreter qualified by the appointing authority becomes unavailable unexpectedly before completion of the adjudicative proceeding; or
(h) An interpreter who is certified to interpret in the courts of another state or the federal courts is available.
(((3) The presiding officer)) (6) The appointing authority shall make a preliminary determination that an interpreter is able in the particular proceeding to interpret accurately all communication to and from the impaired or non-English-speaking person. This determination shall be based upon the testimony or stated needs of the impaired or non-English-speaking person, the interpreter's education, certifications, and experience in interpreting for contested cases or adjudicative proceedings, the interpreter's understanding of the basic vocabulary and procedure involved in the proceeding, and the interpreter's impartiality. The parties or their representatives may question the interpreter as to his or her qualifications and impartiality.
(((4) If at any time during the proceeding,)) (7) If in the opinion of the impaired or non-English-speaking person, the ((presiding officer)) appointing authority or a qualified observer, the interpreter does not provide accurate and effective communication with the impaired or non-English-speaking person, the ((presiding officer)) appointing authority shall appoint another interpreter.
(((5))) (8) Mode of interpretation.
(a) The AOC recognizes three spoken language interpreting modes: Consecutive, simultaneous, and sight translation. Sight translation means the act of reading a written text out loud.
(b) Interpreters for non-English-speaking persons shall use the simultaneous mode of interpretation where the presiding officer and interpreter agree that simultaneous interpretation will advance fairness and efficiency; otherwise, the consecutive mode of foreign language interpretation shall be used.
(((b))) (c) Interpreters for hearing impaired persons shall use the simultaneous mode of interpretation unless an intermediary interpreter is needed. If an intermediary interpreter is needed, interpreters shall use the mode that the interpreter considers to provide the most accurate and effective communication with the hearing impaired person.
(((c))) (d) When an impaired or non-English-speaking person is a party to a proceeding, the interpreter shall ((translate)) interpret all statements made by other hearing participants. The presiding officer shall ensure that sufficient extra time is provided to permit ((translation)) interpretation and the presiding officer shall ensure that the interpreter ((translates)) interprets the entire proceeding to the party to the extent that the party has the same opportunity to understand all statements made during the proceeding as a nonimpaired or English-speaking party listening to uninterpreted statements would have.
(((6))) (9) An interpreter shall not, without the written consent of the parties to the communication, be examined as to any communication the interpreter interprets under circumstances where the communication is privileged by law. An interpreter shall not, without the written consent of the parties to the communication, be examined as to any information the interpreter obtains while interpreting pertaining to any proceeding then pending.
(((7))) (10) The presiding officer shall explain to the impaired or non-English-speaking party that a written decision or order will be issued in English, and that ((the party may contact the interpreter for an oral translation)) a visual translation or sight translation of the decision ((and that the translation itself)) is available at no cost to the party. ((The interpreter shall provide to the presiding officer and the party the interpreter's telephone number. The telephone number shall be attached to the decision or order mailed to the party. A copy of the decision or order shall also be mailed to the interpreter for use in translation.
(8))) The presiding officer shall attach to or include in the decision or order a telephone number to request a visual translation or sight translation.
(11) If the party has a right to review of the order or decision, the presiding officer shall orally inform the party during the hearing of the right and of the time limits to request review.
(((9))) (12) The agency involved in the hearing shall pay interpreter fees and expenses.