An analysis of interpreter market rates and an update on my current discovery and litigation with liens and Cost Petitions
About two years ago, one of my favorite clients asked me to handle a Cost Petition over an alleged underpayment to an interpreter who had assisted at a hearing about two years prior. I accepted, largely as a learning experience. Up until that point, I had handled hundreds of interpreter liens through the traditional lien process, from informal negotiations through trial decisions, and had even successfully disposed of a prior Cost Petition by identifying a accounting mistake on the part of the interpreting agency. I was pretty aggressive in my response to the WCAB, which did the trick. I guess that was enough for my client to warrant a return to another Cost Petition with the same opposing counsel.
Up to that point, I had only handled a few Labor Code §5811 Cost Petitions over the years and all were negotiation-based. Meaning, the client just wanted them to go away and were willing to pay for attorney’s fees to bring an end to the issue. From the start of that first Cost Petition with this client, I realized that they would rapidly become more popular (and they have), for at least two reasons. First, there is a conflict in the law that allows for multiple avenues to pursue collection of an interpreter bill. Even the most seasoned attorneys who specialize in only filing Cost Petitions (yes, there are a few) seem to confuse what is subject to IBR, non-IBR, a lien, or a Cost Petition under Labor Code §5811. Defense attorneys confuse them even more. As a side note, Labor Code §5811, WCAB Rule §10545 and a few other CCR provisions all have arguable overlaps pertaining to medical, medical-legal and “other” situations in which interpreters may render assistance.
Second, is the claim of a “market rate” in general. Raise your hand if you have NOT seen an interpreter bill for anywhere between roughly $200-$400 for a minimum of two hours that is accompanied by a long, generic list of “other” comparable charges. No specifics, no case information. Nothing more than some random dates, a billed amount, and canned information as to what type of service the interpreter allegedly provided as their service. I see no hands raised.
Boom! That is the all-powerful Kunz analysis that interpreters and their counsel attempt to roll up and smack the defendant over the head with as proof of their “market rate”. And time and time again, a defense attorney will glance at it and decide to compromise. Maybe that same attorney convinced the interpreting agency to knock a few bucks off per date of service. Maybe they threaten a threshold issue. Maybe the appearances get continued and the issue remains unsolved for a while. Yet, time and time again, the defendant coughs up big money for interpreters. Rinse and repeat.
And they are not solely to blame. Claims examiners who have suffered through a long and drawn-out claim just want some peace and quiet and for those old dog claims to go the way of the ghost. No one likes dealing with those zombie files. And so, they offer authority and the matter is resolved. And don’t get me started on Judges. I have learned over the last year and a half that they too frequently don’t understand what goes into a Kunz analysis and what is required. They seem to dislike liens and Cost Petions even more than the defense side does, as lien conferences and hearings clog their already busy calendar. “Why aren’t both sides negotiating harder?” “Can’t your client come up with more money?” Again, raise your hand if you have NOT heard the same thing from a Judge on a case you have handled. Anyone? Anyone?
I have gone to Trial on four such Cost Petitions over the last year or so, with some positive results. Of those, two have resolved with a lower payment obligation than what was demanded. Two resulted in no reimbursement due for attorney fees. All have slapped down overly broad discovery demands. I have negotiated three more. I have two that are pending being set for Trial at an upcoming appearance, with maybe six more in some other stage. In addition, I have two pending lien Trials for a Cost Petition and another for a lien filing where the WCAB has combined my request for discovery with the billing and demand for money.
However, most of the work put into these cases has been defensive in nature, as I have jumped on the case after an appearance has already occurred, or well after a Cost Petition and demand for documentation has long been provided. Or, after a lien was filed for an interpreter and there either was a hearing pending, or one that had already occurred. Most of the work has been to clean up any issues and position the case for Trial. It wasn’t until fairly recently that we have finally been able to play some offense and aggressively demand discovery of our own.
And what is the discovery? It stems from what I assume would be basic questions we should really know the answers to, if we are going to pay for a service. Such as, how is that market rate determined? What goes into it? What analysis goes into the Kunz paperwork the interpreters are presenting? What is the background of those other dates of service? I have found that the answers are hard to come by.
Not just because interpreting agencies don’t want to provide me with basic information. That is to be expected. It seems that they can’t provide a substantive response. They just continue to use terms like “industry standard”, “trade secrets” and “Kunz analysis”. I recently had a lien claimant tell me with a straight face that knowing how the market rate is determined by her client and what is actually paid to the interpreter versus overhead and other costs is not relevant. What?
I am at the point with a few cases where depositions are in progress. Of interpreters and of owners or persons most knowledgeable of the agency. That has been an uphill battle in court, but I have finally taken that hill and am working on the next one. And I have learned a few interesting things. First, every interpreting agency I have spoken with uses independent contractor interpreters. Which means, they have some form of an agreement or payment structure, and they don’t want you to know what it is. Yet that is certainly relevant, and we have the right to know. If you are demanding the defendant pays for your market rate, we get to know if it is reasonable.
Next, I have learned that most independent contractor interpreters accept work that stretch longer than a single appointment and most are at one, or at most, a few facilities, all day, every day. Third, their pay is based on a daily lump sum, no matter how many interpreting jobs they handle. I do have one agency claiming otherwise (per job), though I don’t believe them as the math does not make sense for the individual interpreter in that case and I am moving forward with more discovery on that issue.
That said, I have asked to see the math that goes into the contract with the interpreters, and I want to see what the agreement actually is. We then need to discuss what else goes into the final demand. Which brings about an interesting question: why are we paying the same amount for each service if the interpreter assists one person in the day or ten?
Revisiting Kunz
The Kunz decision provides a framework for determining the reasonableness of services by encompassing four components:
- Customary fee accepted by the provider
- The typical fee accepted by other (medical) providers in the same geographic area
- Pertinent aspects of the economics of the (medical) providers practice
- Any exceptional circumstances pertaining to the case
Lien claimants and Cost Petitioners alike claim that the one- or two-page document that shows other payments made for comparable services is sufficient to establish their burden. I would say it is not. However, for years defendants have been both the executioner and at the same time the condemned prisoner to the potential of higher fee payments for interpreters. For a long time, we have just sat around and taken the argument at face value and have not really fought off some of the sky-high fees demanded. In other words, we have not made interpreters show their math.
How many of those dates of service were negotiated? Subject to a contract? Part of a final settlement after litigation? We simply do not know and for years, interpreters have not been forced to show us. Why are we not asking for the data, and asking to make sure it is not cherry-picked data at that? I have started to ask for specifics and suddenly, the information is hard to come by or unknown.
One of the Kunz components deals with the economics of the practice. As such,I have started to ask about the economics behind market rate claims. What are the interpreters actually paid per their agreement? What is the amount that is baked into the market rate in terms of overhead or costs to run the business? How much is pure profit? Why is the minimum number of hours always seem to be two, per date of service? Again, answers remain elusive, but they are slowly trickling out of my discovery.
Not surprisingly, interpreting agencies have thrown up all sorts of roadblocks and have even outright demanded the WCAB prevent me from getting answers, without any valid explanation. Some claim the information is a trade secret, though I have yet to have anyone provide an explanation as to why. Curiously, the “two hours minimum” standard only appears to be found under 8 CCR §9795.3, which is part of the fee schedule noted in that section. Which is the same fee schedule they claim does not apply because of their market rate. Yet the claim is “industry standard” which may be true for reasons as stated above. Still, we should be probing those claims.
Fortunately, there are some saving graces found in other caselaw and in 8 CCR §9795.3 itself. Section (b)(1) and (2) specifically outline the events potentially subject to Superior Court or market rates, and which fall under all other events subject to the set rate or alleged market rate. However, it is still the burden on the interpreting agency to establish the rate. Additionally (b)(1) does not say providing a list of comparable services is the end-all for evidence. We must also remember that reasonableness of charges is a required analysis.
A bit about caselaw
The Tapia decision reminds us that billing by itself does not establish that a fee is reasonable and that standing alone, a lien is not allowable if it is unreasonable on its face. Further, relevant evidence may be offered to rebut it. Tapia v. Skill Master Staffing, Liberty Mut. Ins. Co. (2008) 73 Cal. Comp. Cases 1338. I think getting answers to what goes into the final rate itself is certainly relevant. Gould also reminds us that other factors of economics may be considered. Gould v. Workers’ Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059. Finally, we are reminded by Guitron that the two-hour minimum is not set in stone and the actual appointment time can be considered. 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)).
What can we do?
I recently completed training for the lien unit of my client on interpreter Cost Petitions and liens. With questions, it took over three hours and, truth be told, we could have taken an even deeper dive with my outline presentation and extended that for at least another hour. This brief article only scratches the surface about the Labor Code, Code of Regulations, and the caselaw. Strategies and defenses are abundant, and there is no way I can get into all of it here. But it starts with finally standing up to the Cost Petitioners and lien claimants and pushing back. Demanding evidence. Not letting them simply use canned Petitions and canned responses, nor being afraid to take things to hearings or even Trial.
I know there is a cost of both time and money, and I also know there are a lot of DA’s who don’t want to take on this fight. Sometimes pushing back against a Judge who does not want to jump into the fray either is uncomfortable. Which is why I am grateful to not only my client who is willing to try to change the status quo and but also for the two other attorneys in my firm who have joined me in this fight and who are collaborating with me to build up solid defenses. It is in the trenches of this battle that we create good case law and change behaviors and maybe even wind up with an actual fee schedule instead of this mish-mash of options. At minimum, Cost Petitioner’s and lien claimants remember the people who fight back.
If we want clarity, consistency, and reasonableness in interpreter billing, the path forward is clear: engage, challenge, and hold claimants to their burden. That work happens in the trenches—and it is work worth doing. Are willing to get into the trenches with me?
If you need guidance navigating these types of issues, we are always here to help.
