RULES AND REGULATIONS
Title 34--LABOR
AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[ 34 PA. CODE CH. 501 ]
Registration of Sign Language Interpreters and Transliterators
[38 Pa.B. 6605]
[Saturday, December 6, 2008]The Department of Labor and Industry (Department) added Chapter 501 (relating to registration of sign language interpreters and transliterators) to read as set forth in Annex A.
Statutory Authority
The Sign Language Interpreter and Transliterator State Registration Act (act) (63 P. S. §§ 1725.1--1725.11) provides the legal authority for these final-form regulations.
The act charges the Office for the Deaf and Hard of Hearing (Office) within the Department with the responsibility to promulgate regulations that are necessary to carry out the provisions of the act. See 63 P. S. § 1725.3(4). These provisions include approval of an examination which tests knowledge and proficiency, fees, disciplinary violations, registration and the reactivation of registration after suspension or revocation. See 63 P. S. §§ 1725.5(a)(1)(iii) and (d), 1725.8(a)(6) and 1725.9(c)(1).
Comments
Notice of proposed rulemaking was published at 36 Pa.B. 3822 (July 22, 2006) affording the public, the Legislature and the Independent Regulatory Review Commission (IRRC) the opportunity to offer comments. The Department received comments from the public and IRRC. It did not receive any comments from the Legislature.
In addition to IRRC and individuals, the Department received comments from the Pennsylvania Registry of Interpreters for the Deaf (Pa RID), the National Registry of Interpreters for the Deaf, Inc. (RID), the Advisory Council for the Deaf and Hard of Hearing (ACDHH) and Sorenson Communications. The comments and the Department's responses to these comments are addressed as follows.
§ 501.1. Definitions.
NAD
IRRC and Marc Holmes commented that the definition of the NAD (National Association for the Deaf) should be amended to remove the incorrect address and clarify that the NAD previously offered certification. The National RID and the Pa RID also suggested that the address for the RID be removed and suggested expansion of this definition. IRRC suggested that an alternative would be for the Department to distribute information regarding addresses to individuals upon request or to include links to the organizations on its web site. The Department made these changes.
NAD National Interpreter Certification
IRRC and the National RID, Pa RID and Marc Holmes commented that the Department should amend the definition of the NAD National Interpreter Certification to reflect the following: (1) the test is the former examination offered by the NAD for certification; (2) the test was performance based only; and (3) the certifications obtained from passage of the examination remain valid. The final-form regulations contain these changes.
NAD-RID NIC
The ACDHH commented that this definition should be expanded to include the Certified Deaf Interpreter (CDI) examination. The CDI examination is a separate testing instrument. As such, it is not appropriate to include it within this definition. Accordingly, the Department will not amend this definition. It should be noted however, that after the publication of the proposed regulations, RID ceased using ''NAD-RID'' in the title of this examination. Consequently, the Department amended the definition to reflect that the accurate examination name is ''NIC.''
The Pa RID and Marc Holmes also requested the deletion of this definition. These commentators stated that the definition was redundant because it is considered an RID Generalist examination. However, the RID utilizes the term ''NIC'' as the name of the examination and does not include it under ''generalist'' exams. Consequently, this definition will remain in the final-form regulations.
Rid Generalist Examinations
IRRC commented that the Department needed to amend this definition to reflect that the generalist examinations are former examinations which are no longer offered, but that the certifications are still valid. The Department has amended the definition to clarify that the examinations for the Certified Interpreter (CI), Certified Transliterator (CT), Oral Transliterator Certificate (OTC) and Certified Deaf Interpreter (CDI) are current examinations and that the examinations for Comprehensive Skills Certificate (CSC), Master Comprehensive Skills Certificate (MCSC) and the Oral Interpreter Certificate: Comprehensive (OIC:C) are former examinations. All of these certifications remain valid. Additionally, based upon comments received from IRRC, the Department has added definitions for the certification acronyms.
Other terms
Comments were received by the Pa RID and Marc Holmes requesting additional definitions for the terms ''day,'' ''internship,'' ''practicum'' and ''emergency.'' Under the Statutory Construction Act, words are to be construed according to ''rules of grammar and according to their common and approved usage.'' See 1 Pa.C.S. § 1903 (relating to words and phrases). Section 1991 of the Statutory Construction Act contains a definition for ''day.'' Therefore, further definitions are unnecessary.
ACDHH suggested that the term ''qualified interpreter'' be defined consistent with the definition of that term contained in the Americans With Disabilities Act of 1990. Because the act already defines ''qualified interpreter'' as an individual who is registered with the Office, a regulatory definition would be redundant. See 63 P. S. § 1725.2.
§ 501.2. Fees.
ACDHH suggested that the Department include a $25 fee for students who are providing interpreting services in supervised internships or practicum. However, individuals providing services as interns are exempt from registration. See 63 P. S. § 1725.4(b)(3). Consequently, there is no authority under the act to impose fees on these students.
§ 501.3. Examination.
IRRC recommended deletion of references to the NAD NIC and the RID Generalist examinations because these examinations are no longer offered. It further recommended clarification that the NAD-RID NIC is the only examination approved for registration. The Department declines to remove these examinations from the list of approved examinations for the reasons that follow.
The act requires that applicants provide proof of passage of an examination approved by the Office that tests knowledge and proficiency. See 63 P. S. § 1725.5(a)(1)(iii). Although the NAD NIC and RID Generalist examinations are no longer offered, the Department will continue to accept these older examinations for purposes of registration.
Ann Sidone suggested that the Office create quality assessments for nonregistered interpreters and limit their practice areas. This commentator also suggested that the Office require interpreters to score a 4 on the Educational Interpreter Performance Assessment to interpret in postsecondary educational settings. The act does not require nonregistered interpreters to pass an examination or a quality assessment. See 63 P. S. § 1725.4. Further, the act does not limit the practice areas of registered interpreters. Accordingly, this revision will not be made.
IRRC commented that since subsection (b) requires applicants to obtain examinations and applications directly from and pay the required fee to the examination provider, the Department's web site should provide a link to the providers. The Department's web site currently contains a link to the examination providers' web sites.
§ 501.4. Registration.
Comments were received from Pa RID, the National RID and Marc Holmes requesting that the reference to the NAD-RID NIC be removed from § 501.4(a) because it is a test and not a certification. The final-form regulation reflects this change.
IRRC stated that the final-form regulation should include a time frame in which the Department will issue the registration. A 60-day time frame was added to the regulation.
Pa RID suggested that applicants be required to submit ''current'' certification to ensure that registered interpreters are up-to-date on continuing education units, changing ''may'' to ''shall'' in subsection (a)(1), and capitalizing ''office'' in (2). The proposed and final-form regulations require the submission of current certification. The Department did not change ''may'' to ''shall.'' This will allow the Office to consider other forms of evidence as proof that an applicant has passed an approved examination. The term ''office'' has been capitalized.
IRRC commented on incorrect citation form in this section. These corrections were made. IRRC further stated that the Department should add a new section to the regulations listing the violations for the portions of the regulated community who do not have to reference the act since the regulations include a reference to section 8 of the act in this section. IRRC believed that inclusion of the violations in the regulations will allow the regulated community to know what constitutes a violation without having to reference the act. The Department has added a section which lists the violations. This section is § 501.7 (relating to violations). Consequently, this has resulted in the renumbering of other provisions as noted below. Additionally, the Department will publish the act and the regulations on its web site.
§ 501.5. Exemptions.
IRRC recommended that all eight exemptions listed in section 4 of the act be included in the regulation. The Department has made this change. The addition of all exemptions has resulted in renumbering in this section.
Subsection (a) Interpreting in a religious setting--IRRC requested that the Department explain why the phrase ''religious-study purposes'' is used in this subsection rather than the phrase ''educational purposes'' found in the act. Two other commentators, ACDHH and Ann Sidone, requested deletion of the term ''study.'' The Department used the phrase ''religious-study purposes'' to clarify that the exemption only applies to interpreting services performed for religious instruction instead of instruction in secular subjects at a religiously affiliated school. Sign language interpreting and transliterating services during secular instruction must be provided by an individual who is registered with the Office or who meets the requirements established by the State Board of Education. The Department believes that the term study accomplishes its intended purpose and declines to eliminate it from the regulations.
Subsection (a)(1)--Pa RID requested a definition clarifying what constitutes a worship service. The Department declines to add a definition for this term. Whether a service constitutes a worship service is dependent upon the particular religious sect's beliefs, is not specified by statute or judicial cases and cannot be enumerated by regulation. Consequently, a single definition for ''worship service'' would not respond to varying philosophies. Accordingly, the term ''worship service'' should be determined on a case by case basis with input from the particular religious sect.
Subsection (d) Out-of-State interpreter (previously subsection (b) in proposed regulation)--Pa RID and Marc Holmes stated that the regulations provided that out-of-State interpreters must possess current certification from a ''national certifying body,'' while the act specifically references certification by the NAD or RID, Inc. This correction has been made.
IRRC questioned how soon the Office must be notified of an out-of-State interpreter providing services. Due to the possibility that some services might be requested and performed with short notice, the Department amended the regulation to require that notice must be provided to the Office within 5 business days of the provision of services.
Other comments were received from Marc Holmes, Barbara Anthony and Ann Sidone stating that the requirements for out-of-State interpreters should be the same for nonregistered in-State interpreters who provide up to 14 days of services in a calendar year. The act exempts out-of-State interpreters who provide services for no more that 14 days in a calendar year. See 63 P. S. § 1725.4(b)(4). However, the act does not exempt nonregistered in-State interpreters. The regulation cannot be used to expand the exemptions beyond the act's parameters.
IRRC and Pa RID questioned whether the required forms to comply with the requirements of this subsection and other provisions of the act would be available from the Office. The regulation was amended to clarify that forms are available from the Office or the Department's web site.
Additionally, subsection (b)(1)(3)(i) was amended by deleting the reference to the time and nature of the service being provided. The Department believes that furnishing the date of service is sufficient and the exact time is not necessary. Furthermore, the nature of the service would be sign language interpreting or transliterating. Accordingly, further information is not required.
Subsection (e) Interpreting at the request of a deaf or hard of hearing individual (previously subsection (c) in proposed regulations)--Pa RID suggested that a hearing individual who relies on the services of a sign language interpreter or transliterator be allowed to approve the use of a nonregistered interpreter. However, section 4(b)(5) of the act specifically provides that a nonregistered individual may provide services at the request of an individual who is deaf or hard of hearing. See 63 P. S. § 1725.4(b)(5). Consequently, it is clear that the act did not intend to provide a hearing individual with a right of approval.
Eve Adelman requested that the Department eliminate subsection (c) because the subsection is unethical and undermines the original purpose of the act. However, this subsection is necessary because it contains clarification of a provision contained in section 4(b)(5) of the act. See 63 P. S. § 1725.4(b)(5).
Additionally, the Department made additional amendments to this subsection to clarify that the individual referenced is the person providing sign language interpreting or transliterating services. Further, changes were made to evidence that the deaf or hard of hearing individual was choosing to use the services of an unregistered individual.
Subsection (f)--Educational interpreters (previously numbered subsection (d) in proposed regulations)--IRRC, Pa RID, ACDHH, Marc Holmes and Rose Breinich commented that the proposed regulation does not correspond with section 4(b)(7) of the act since the enactment of Act 92 of 2006. Previously, the act provided for an exemption from registration for individuals who provided sign language interpreting services for a school-related activity if the individual was employed in a public or private elementary or secondary school or institution chartered by the Commonwealth and the individual received a rating equal to or exceeding 70% on the Educational Interpreter Performance Assessment.
On July 7, 2006, Act 92 of 2006 was enacted which deleted these requirements and added language that provides that an individual is exempt from registration if the individual is employed in a public or private elementary or secondary school or institution chartered by the Commonwealth and providing services for the instruction of students or other school-related activity. The act further provides that exempt individuals shall comply with regulations promulgated by the State Board of Education establishing criteria for persons providing sign language interpreting and transliterating services to students. See 63 P. S. § 1725.4(b)(7).
Accordingly, the Department changed the language in the final-form regulation to be consistent with the amendment to the act made since submission of proposed rulemaking. Additionally, the Department has added the Pennsylvania Code citations to the applicable Department of Education regulations. See 22 Pa. Code §§ 14.105 and 711.5 (relating to personnel).
Subsection (g)--Interpreting in physician's office (previously numbered subsection (e) in proposed regulations)--A comment was received from the Pennsylvania Academy of Otolaryngology, Head and Neck Surgery requesting clarification that a physician has the discretion to determine whether an interpreter is necessary in the first instance. After reviewing this comment, the provisions of the Americans With Disabilities Act of 1990 and the act, the Department has rewritten the provisions of this subsection.
The revisions clarify that the individual being regulated is the individual providing sign language interpreting or transliterating services. These revisions also clarify that a sign language interpreter or transliterator may not be required in all instances. However, when these services are required for effective communication, the interpreter must be registered with the Office unless the patient is notified that the individual is not registered and that the patient has a right to the services of a registered interpreter.
IRRC questioned how long a physician's office must keep a copy of the patient's signed statement. Additionally, the Pa RID questioned whether a form from the Office would be available. The final-form regulation clarifies that forms are available from the Office or the Department's web site and that physicians are required to maintain the forms in a patient's file consistent with record retention requirements of the relevant professional licensure statute or regulation.
Pa RID suggested that this subsection require physicians to submit the waiver forms to the Office. The Department believes this requirement would potentially violate privacy rights of a patient who is deaf or hard of hearing. As such, this provision will not be added.
Eve Adelman suggested the addition of language that limits the use of nonregistered interpreters in the medical field unless the interpreter is referred from a referral service that is liable for any mistakes caused by the interpreter. However, the act provides no authority for the Department to regulate where individuals are required to obtain interpreters.
Mentorships--Comments were received from the Pa RID, Sorenson Communications and Marc Holmes requesting the addition of a subsection addressing individuals who are participating in a ''mentorship.'' The act does not address these types of programs. The act exempts individuals from registration who are participating in a supervised internship or practicum at an accredited college or university or the RID or NAD. See 63 P. S. § 1725.4(b)(3). Internships and practicum are official or formal programs or school courses that provide practical experience for beginners in a particular field of study. Mentorships, on the other hand, are quasi-personal/professional relationships between advisors or teachers and individuals to provide counsel, direction and advice. These relationships do not qualify as internships or practicum. Accordingly, the Department declines to make this revision.
Another commentator, Pamela Cosper, requested a similar exemption for students who have graduated from an accredited Interpreter Training Program (ITP) and requested that these individuals receive a 3- to 5-year grace period to pass the examination approved by the Office. The Department is mindful that individuals graduating from ITPs need an opportunity to hone their skills prior to sitting for a certification examination; however, the act does not contain an exemption for these individuals. Consequently, the regulations cannot contain this exemption.
Emergency--In addition to requesting a definition for the term ''emergency,'' Cindi Brown requested that the Department require hospital emergency rooms to develop policies to ensure the availability of registered interpreters to patients who are deaf and hard of hearing. Section 4(b)(2) of the act defines ''emergency'' as a situation where a delay of interpreting services might lead to injury or loss to the individual requiring services. See 63 P. S. § 1725.4(b)(2). Further, the act regulates the community of sign language interpreters and transliterators and does not provide authority for the Department to regulate hospitals. Consequently, the Department declines to include these suggestions in the final-form regulation.
Subsection (h)--A new exemption has been added to this section since publication of the proposed regulations. The exemption was required due to the passage of Act 172 of 2006, 2 Pa.C.S. Chapter 5, Subchapter C and 42 Pa.C.S. Chapter XX, Subchapter C (relating to administrative proceeding interpreters for persons with limited english proficiency; and court interpreters for the deaf) which requires the Administrative Office of the Pennsylvania Courts (AOPC) and the Department to certify and approve foreign language interpreters, sign language interpreters and transliterators, and otherwise qualified interpreters who may provide services in judicial and administrative proceedings. Although individuals who are registered with the Office may be deemed certified and otherwise qualified to provide services under Act 172, the AOPC and the Department may certify or approve otherwise qualified individuals who may not be registered with the Office. Accordingly, this section provides an exemption for those individuals who are providing services in judicial and administrative proceedings consistent with the provisions of Act 172.
§ 501.6. Complaints.
Subsection (a)--Pa RID and Marc Holmes suggested that the Department allow the submission of videotaped complaints because English is not the native language for many sign language users. As such, writing a complaint in English could prove to be a hardship. The Department has determined this to be a legitimate concern and amended the provisions of this section in the final-form regulations. However, the Department specified that complaints can be ''written'' or in ''visual language.'' Using the phrase ''visual language complaint'' allows for advancements in technology and other various types of media beyond current technology levels.
Pa Rid and ACDHH requested that the Department replace ''may investigate'' with ''shall investigate.'' The Department has discretionary authority to investigate complaints under the act and will investigate viable or legitimate complaints.
Barbara Anthony requested that the Department allow for the filing of anonymous complaints. Anonymous complaints increase the risk of individuals filing false or harassing complaints and are often unsubstantiated. However, the regulations do not preclude the Department from investigating anonymous complaints where appropriate.
The National RID expressed concern that an interpreter filing a complaint or reporting information might violate the RID Code of Conduct, if that information were obtained through an interpreting assignment. The RID Code of Conduct is a private internal standard of conduct that does not have the force or effect of law. Further, Part B of the Applicability Section of this code recognizes that State and Federal laws and regulations take precedence over the Code. Accordingly, this issue does not justify amending the regulation.
§ 501.7. Violations.
As noted previously, based upon comments received from IRRC, the Department has added a separate section to the regulations that lists the various violations including violations enumerated in the act.
§ 501.8. Hearings/appeals (as proposed regulation § 501.7).
Subsection (a)--IRRC requested that the Department include references to the subject matter of sections 8 and 9 of the act (63 P. S. §§ 1725.8 and 1725.9) regarding registration violations and suspension, denial, nonrenewable, or revocation of state registration of the act. The Department has included subject matter references in the final-form regulation.
Subsection (b)--The Department amended this subsection to add language clarifying the effect of a respondent's failure to respond to an order to show cause.
Subsection (e)--IRRC questioned how much time a presiding officer has to issue a proposed report and order, and requested that the Department include a time frame. Hearing complexity and length have a direct impact on the time for a presiding officer to prepare a proposed report and order. Significantly, 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) (GRAPP), governing hearings and appeals before administrative agencies does not enumerate a time in which a presiding officer must issue a proposed report and order. Consequently, the Department declines to do so.
Subsection (f)(1)--IRRC also noted a typographical error contained in this subsection relating to the time frame in which exceptions must be filed. The final-form regulation reflects the appropriate time period of 30 days contained in GRAPP. See 1 Pa. Code § 35.211 (relating to procedure to except to proposed report).
The National RID, Pa RID and Marc Holmes also recommended that the term ''registrant'' in subsections (b) and (c) be changed because a nonregistered individual could be in violation of the act. The Department has substituted the term ''respondent'' in the final-form regulation.
§ 501.9. Reconsideration (as proposed regulation § 501.8).
Subsections (a) and (b)--IRRC questioned how an applicant for registration would be notified of a denial, whether the notice would specify the reasons for the denial, and how long the applicant would have to file reconsideration. These subsections have been amended to clarify that applicants will be notified by mail and the notice will specify both the reasons for the denial and the procedures for requesting reconsideration. The time period for requesting reconsideration is 30 days from the date of the notice.
Subsection (f)--IRRC requested that subject matter references to sections 10 and 11 of the act (63 P. S. §§ 1725.10 and 1725.11) regarding appeals and effect of an order be included in the final-form regulations. The Department has made this change.
§ 501.10. Biennial registration renewal (as proposed regulation § 501.9).
Subsection (a)--The Department received comments from Pa RID that the registration cards be issued in paper and electronic form within 30 days. The act provides that registration cards be issued in paper or electronic form. See 63 P. S. § 1725.5(b)(2). The final-form regulation provides that registration cards will be issued within 60 days.
Subsection (d)--Pa RID suggested that the language be amended to clarify that the Office does not have the option of failing to send a renewal notice to a registrant. While the Office does not anticipate that it will fail to send a renewal notice, the individual registrant will be responsible for ensuring that a registration is current. Accordingly, no change to the language of this subsection was made.
§ 501.11. Reactivation of registration (as proposed regulation § 501.10).
IRRC commented that, although this section addresses reactivation of a suspended registration, it fails to address the procedure for a revoked registration. Section 9(c) of the act covers reactivation of suspended and revoked registrations. Accordingly, this section of the final-form regulations has been amended to include procedures for reactivation of revoked registrations.
IRRC also requested the removal of the word ''certain'' from proposed section 10(a)(1). This change is reflected in the final-form regulations.
Additionally, Pa RID suggested that the Office maintain proof of compliance with the terms and conditions of any suspension order. Because compliance information is required as part of the reactivation application process and will be reviewed by the Office, there is no need to include this language in the regulations.
§ 501.12. Change of address/name/information (as proposed regulation § 501.11).
IRRC and Pa RID noted that there was a discrepancy between the act and the proposed regulations. The act requires that change of information be provided to the Office within 10 days of the change. 63 P. S. § 1725.6. The final-form regulation reflects the 10-day period of the act.
IRRC also requested that the Department amend the language to clarify what is meant by ''other personal or professional information.'' This phrase is meant to include updated information pertaining to disciplinary or administrative actions taken by other states in accordance with section 8(a)(3) of the act (63 P. S. § 1725.8(a)(3)). The final-form regulation reflects this clarification.
§ 501.13. Confidential communications.
IRRC recommended that the Department include a section corresponding to section 7 of the act (63 P. S. § 1725.7) regarding confidential communications. IRRC stated that this would assist members of the regulated community who rely solely on the regulations. Consistent with IRRC's recommendation, the Department has added this section.
Miscellaneous Comments
Sorenson Communications suggested that interpreters who provide Video Relay Services (VRS) should be exempt from the regulations. VRS is a part of the Federal Telecommunications Relay Services (TRS) that is regulated by the Federal Communication Commission. The Pennsylvania Public Utility Commission operates a TRS certified by the FCC, which adheres to the Federal regulations. Although the FCC regulates TRS services in this Commonwealth, the FCC does not regulate the provision of interpreter services within this Commonwealth. Furthermore, the FCC rules allow for more stringent requirements to be imposed by individual states. Finally, the Department is not authorized to exempt any individual or entity from the act through regulation.
Melanie Holmes expressed concern about limiting the use of nonregistered interpreters within this Commonwealth and suggested that a particular interest group was the driving force behind the regulations. The proposed-regulation process allows comment from all concerned members of the public. Comments were reviewed and considered in the drafting of these final-form regulations. No outside entity controlled or directed this process.
Ann Sidone suggested that the act and the regulations will have a negative impact and result in a shortage of interpreters. The commentator therefore suggested that the act be temporarily suspended. The Department has no authority to suspend the enforcement of a statute, particularly through regulation. Furthermore, the Department believes that the exemptions to registration will alleviate any concerns about the shortage of registered interpreters.
IRRC and ACDHH noted that the Table of Contents was misnumbered. The Table of Contents has been numbered correctly in the final-form regulations.
Finally, IRRC recommended, for consistency purposes, that the Department include parallel citations to Purdon's Statutes where a section of the act has been referenced. The Department made this change.
Affected Persons
Individuals who provide sign language interpreting and transliterating services within this Commonwealth will be affected. The Office estimates that approximately 250 individuals will register under this act. These registrants will be impacted by the act's requirements which include a demonstration of competency to provide interpreting and transliterating services and the registration fee. Pennsylvanians who are deaf or hard of hearing and who rely on interpreting and transliterating services will benefit from uniform standards relating to knowledge and proficiency.
A physician's office will have to complete and maintain records and provide notification to patients to comply with the exemption provided in section 4(b)(8) of the act and § 501.3(d) of the proposed rulemaking. A physician's office will have to allow a patient to utilize a registrant, if requested.
Fiscal Impact
It is anticipated that there will be costs to the Department as a result of this final-form rulemaking. These costs should be offset by the registration and renewal fees contained in these final-form regulations. It is anticipated that the Department will receive $20,000 in initial registration fees.
The Department cannot anticipate the costs of investigating, prosecuting and adjudicating alleged violations because there is no basis for comparison for this activity. The Office cannot predict the costs of monitoring compliance with the registration exclusions provided in § 501.4. It is not expected that the levying of administrative fines will demonstrably offset costs.
Paperwork Requirements
The Office will need to develop forms for registration and renewals and for filing complaints. It will develop a registration card or identification for registrants. Related forms include registration denial and notifications concerning reconsideration. The Office will have to keep records indicating registration status, hearings and discipline. Many of these records will have to be accessible to the public under section 3(3) of the act.
Applicants will have to provide documentation to register and renew registrations, including certification requirements under § 501.3. A physician's office will have to complete and keep records concerning patient notification under § 501.4(d).
Effective Date
These final-form regulations will be effective upon publication in the Pennsylvania Bulletin.
Sunset Date
A sunset date is not appropriate for these final-form regulations. However, the Department will continue to monitor the impact and effectiveness of the regulations.
Contact Person
Persons who require additional information about these final-form regulations may submit inquiries to Sharon Behun, Director, ODHH, 1521 North 6th Street, Harrisburg, PA 17102, (717) 783-4912 (v/tty), (800) 233-3008 v/tty (PA only) and (717) 783-4913 (fax), sbehun@state. pa.us.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the Notice of Proposed Rulemaking, published at 36 Pa.B. 3822, to IRRC and the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee for review and comment. In addition to submitting the proposed rulemaking, the Department also provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department.
In compliance with section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), the Department also provided IRRC and the Committees with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Department considered all the comments from IRRC and the public. The House and Senate Committees did not provide comments.
Under section 5.1(j.1)--(j.4) of the Regulatory Review Act (71 P. S. § 745.5a(j.1)--(j.4)), these final-form regulations were deemed approved by the House and Senate Committees on August 20, 2008. IRRC met on August 21, 2008, and disapproved the regulations in accordance with section 5.1(e) and 6 of the Regulatory Review Act.
In compliance with section 7(c) of the Regulatory Review Act (71 P. S. § 745.7(c)), the Department submitted a report to the Committees and IRRC which included these revised final-form regulations. Under section 7(c.1) of the Regulatory Review Act, IRRC met on October 2, 2008, and approved the regulations. These revised final-form regulations were deemed approved by the Committees on October 16, 2008.
Findings
The Department finds that:
(a) Public notice of intention to adopt the administrative regulations adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(b) A public comment period was provided as required by law and all comments were considered.
(c) The final-form regulations are necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Department, acting under the authorizing statutes, orders that:
(1) The regulations of the Department, 34 Pa. Code, are amended by adding §§ 501.1--501.13 to read as set forth in Annex A.
(2) The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.
(3) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(4) This order shall take effect immediately upon publication in the Pennsylvania Bulletin as a final-form regulations.
SANDI VITO,
Acting Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 5818 (October 18, 2008).)
Fiscal Note: Fiscal Note 12-71 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART IX. OFFICE OF THE DEAF AND HARD OF HEARING
CHAPTER 501. REGISTRATION OF SIGN LANGUAGE INTERPRETERS AND TRANSLITERATORS Sec.
501.1. Definitions. 501.2. Fees. 501.3. Examination. 501.4. Registration. 501.5. Exemptions. 501.6. Complaints. 501.7. Violations. 501.8. Hearings/appeals. 501.9. Request for reconsideration of registration denial. 501.10. Biennial registration renewal. 501.11. Reactivation of registration. 501.12. Change of address/name/information. 501.13. Confidential communications. § 501.1. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Act--The Sign Language Interpreter and Transliterator State Registration Act (63 P. S. §§ 1725.1--1725.12).
CDI--Certified Deaf Interpreter--A certification issued by RID.
CI--Certificate of Interpretation issued by RID.
CSC--Comprehensive Skills Certificate issued by RID.
CT--Certificate of Transliteration issued by RID.
Department--The Department of Labor and Industry of the Commonwealth.
MCSC--Master Comprehensive Skills Certificate issued by RID.
NAD--National Association of the Deaf, an advocacy group for deaf and hard of hearing individuals which previously offered certification in sign language interpreting and transliterating.
NAD National Interpreter Certification Test--The former performance examinations conducted by the NAD for Level IV (Master) or V (Advanced) certification as a sign language interpreter or transliterator.
NIC--The National Interpreter Certification test which is the knowledge and proficiency examination conducted for RID's National Interpreter Certification as a sign language interpreter or transliterator.
Office--The Office for the Deaf and Hard of Hearing within the Department, 1521 North 6th Street, Harrisburg, PA 17102.
OIC:C--Oral Interpreting Certificate: Comprehensive issued by RID.
OTC--Oral Transliteration Certificate issued by RID.
RID--Registry of Interpreters for the Deaf, Inc. A National membership organization of professionals and its state affliates that provides certification for sign language interpreters and transliterators.
RID Generalist examinations--The knowledge and proficiency examinations which are conducted by RID for CI/CT, CDI and OTC certifications in sign language interpretering or transliterating and which were formerly conducted by RID for CSC, MCSC and OIC:C certifications in sign language interpretering and transliterating.
Secretary--The Secretary of the Department or the Secretary's designee.
Year--A calendar year.
§ 501.2. Fees.
The Office will charge the following nonrefundable fees:
(1) Registration $100. (2) Biennial renewal of existing registration $100. (3) Surcharge for late renewal of biennial registration. $50. (4) Reactivation following suspension. $100. (5) Registration identification card replacement. $10 § 501.3. Examination.
(a) The following examinations are approved as the examination which tests knowledge and proficiency under section 5(a)(1)(iii) of the act (63 P. S. § 1725.5(a)(1)(iii)):
(1) NAD National Interpreter Certification.
(2) RID Generalist Examinations.
(3) NIC.
(b) An applicant for any of the approved examinations shall obtain applications directly from and pay the required examination fee directly to the examination provider.
§ 501.4. Registration.
(a) An applicant for registration shall submit the following to the Office:
(1) Proof of receiving a passing score on any of the approved examinations. This may include proof of current certification by NAD or RID.
(2) A completed registration application. Applications may be obtained from the office or the Department's web site www.dli.state.pa.us/odhh.
(3) The required registration fee under § 501.2 (relating to fees). Checks shall be made payable to the Commonwealth of Pennsylvania.
(b) The Office will issue a paper or electronic registration to an applicant within 60 days of the date of receipt of the application if the applicant complies with subsection (a) and meets the following criteria:
(1) Is 18 years of age or older.
(2) Has passed the examination required by subsection (a).
(3) Has paid applicable fees.
(4) Possesses the general fitness, competence and reliability sufficient to satisfy the office that the applicant is worthy of State registration.
(c) The Office may deny an application for registration if the applicant:
(1) Does not comply with this section.
(2) Fails to meet the requirements of section 5(a) of the act (63 P. S. § 1725.5(a)).
(3) Committed a violation enumerated in section 8(a) of the act (63 P. S. § 1725.8(a)) and § 501.7 (relating to violations).
(d) The Office will comply with the procedures contained in § 501.9 (relating to request for reconsideration of registration denial) if an application for registration is denied.
§ 501.5. Exemptions.
(a) An individual engaged in interpreting or transliterating services in a religious setting is exempt from registration under section 4(b)(1) of the act (63 P. S. § 1725.4(b)(1)) if the services are provided either:
(1) During a worship service conducted by a religious entity.
(2) Exclusively for religious-study purposes for a religious entity or religiously affiliated school.
(b) An individual engaged in sign language interpreting or transliterating during an emergency when a delay in obtaining a State-registered interpreter or transliterator might lead to injury or loss to the individual requiring the services is exempt.
(c) An individual engaged in interpreting or transliterating as part of a supervised internship or practicum at an accredited college or university, RID or NAD if it is not in a legal, medical or mental health setting is exempt.
(d) An individual who does not reside in this Commonwealth is exempt from registration under section 4(b)(4) of the act in accordance with the following:
(1) The individual possesses current certification from NAD or RID.
(2) The individual provides interpreting or transliterating services in this Commonwealth for no longer than 14 days each year.
(3) The individual provides the following to the Office within 5 business days of providing the interpreting or transliterating service:
(i) Written notice of the date and duration of each sign language or transliterating service that the individual provides or intends to provide within this Commonwealth. Forms may be obtained from the Office or the Department's web site www.dli.state.pa.us/odhh.
(ii) Proof of current certification.
(4) The Office will provide notice to a sign language interpreter or transliterator that he has provided 14 days of services during the year and that the individual is prohibited from providing any further interpreting or transliterating services within this Commonwealth during the year unless the individual registers with the Office in accordance with section 5 of the act (63 P. S. § 1725.5).
(e) An individual engaged in interpreting or transliterating at the request of a client who is deaf or hard of hearing is exempt from registration under section 4(b)(5) of the act in accordance with the following:
(1) The interpreter or transliterator notifies the client that the individual is not registered with the Office.
(2) The client signs a written confirmation acknowledging that the individual is not registered and acknowledging that the client desires the individual's services. Forms may be obtained from the Office or the Department's web site at www.dli.state.pa.us/odhh.
(3) The individual providing services shall provide a copy of the confirmation to the client and maintain a copy of the client's signed statement for 2 years.
(f) An individual who engages in interpreting or transliterating strictly as a volunteer is exempt.
(g) An individual is exempt from registration under section 4(b)(7) of the act for a school-related activity if the individual complies with the State Board of Education regulations establishing criteria for persons providing sign language and interpreting services for a school-related activity. See 22 Pa. Code §§ 14.105 and 711.5 (relating to personnel).
(h) If a sign language interpreter or transliterator is required for effective communication at a physician's office, an individual is exempt from registration under section 4(b)(8) of the act if the individual provides sign language interpreting or transliterating services to a patient who is deaf or hard of hearing in accordance with the following:
(1) The patient signs a written confirmation acknowledging that the individual providing the interpreting or transliterating services is not registered, that the patient has the right to request or provide an interpreter or transliterator who is registered with the Office and the patient desires the services of the unregistered individual. This confirmation must be completed during every office visit. Forms may be obtained from the Office or the Department's web site at www.dli.state.pa.us/odhh.
(2) The individual providing sign language interpreting or transliterating services informs the patient in writing that a request for a registered interpreter or transliterator made after the commencement of the office visit may result in a delay of physician services.
(3) The physician's office shall maintain a copy of the patient's signed statement in the patient's health care file consistent with the regulations of the State Board of Medicine and the State Board of Osteopathic Medicine. See 49 Pa. Code §§ 16.95 and 25.213 (relating to medical records).
(4) The interpreter or transliterator shall maintain a copy of the signed statement for 2 years from the date of service.
(5) A copy of the signed statement shall be provided to the patient.
(i) An individual engaged in interpreting or transliterating in a judicial or in an administrative proceeding is exempt from registeration if the individual is providing services under 42 Pa.C.S. Subchapter C (relating to court interpreters for the deaf) or 2 Pa.C.S. Subchapter D (relating to administrative proceeding interpreters for persons who are deaf).
§ 501.6. Complaints.
(a) Upon the receipt of a written or visual language complaint or upon its own initiative, the Office may investigate allegations of violations of section 8 of the act (63 P. S. § 1725.8) and § 501.7 (relating to violations).
(b) Complaints must contain:
(1) The name and address of complainant.
(2) The name and address, if known, of the individual against whom the complaint is filed.
(3) A statement of the facts forming the basis of the complaint or conclusion that there has been a violation of the act.
(4) The name of any witnesses and other information that may be pertinent to an investigation.
(c) Complaints shall be submitted to the Office which may commence an investigation.
§ 501.7. Violations.
The Department may impose disciplinary or corrective measures under section 9(a) of the act (63 P. S. § 1725.9(a)) or levy administrative fines of up to $500 under section 8(b) of the act (63 P. S. § 1725.8(b)) on a registrant for doing one or more of the following:
(1) Obtaining a State registration or renewal of a registration through fraud, deceit or misrepresentation.
(2) Being convicted of a felony or a crime in this Commonwealth or other jurisdiction relating to the provision of interpreter or transliterator services.
(3) Being the subject of a disciplinary or other administrative action taken against this registration, certificate or license to provide interpreting or transliterating services in another state by a government agency.
(4) Committing fraud, gross negligence or misconduct relating to the provision of interpreting or transliterating services as determined by the office.
(5) Engaging in any other misconduct relating to the provision of interpreting or transliterating services as determined by the office.
(6) Violating the provisions of the act or this chapter.
§ 501.8. Hearings/appeals.
(a) Actions under sections 8 and 9 of the act (63 P. S. §§ 1725.8 and 1725.9) and § 501.7 (relating to violations) will be taken subject to the right of notice, hearing and adjudication in accordance with 2 Pa.C.S. (relating to administrative law and procedure). Hearings shall be conducted under 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure) and this section.
(b) The Office will serve the respondent with an order to show cause under 1 Pa. Code § 35.14 (relating to orders to show cause). The order to show cause will contain notification that the registration may be subject to action and the grounds for the action. The order to show cause will contain notification that the respondent is to respond in writing within 30 days after the date of the service of the order or in accordance with another date designated by the Office. Failure to respond will be deemed a default and relevant facts stated in the order to show cause may be deemed admitted under 1 Pa. Code § 35.37 (relating to answers to orders to show cause).
(c) The respondent may respond in writing to the allegations of the order to show cause under 1 Pa. Code § 35.37. If made, the answer shall be filed with the Office within 30 days after the date of the order to show cause or within another time period specified by the Office.
(d) The Office will provide the opportunity for a recorded hearing on the allegations. The Office will designate a presiding officer to conduct the hearing under 1 Pa. Code §§ 35.185--35.190 (relating to presiding officers).
(e) The presiding officer will prepare and issue a proposed report and order under 1 Pa. Code §§ 35.201--35.207 (relating to proposed reports generally). The presiding officer will serve the proposed report upon counsel of record or to the parties in the hearing. The proposed report will contain the Department address where an appeal may be filed.
(f) A party may appeal the proposed report and order to the Secretary within 30 days of service of the proposed report under section 10 of the act (63 P. S. § 1725.10). Appeals are governed by the following:
(1) A party desiring to appeal to the Secretary shall file exceptions to the proposed report and order within 30 days of service in accordance with 1 Pa. Code § 35.211 (relating to procedure to except to proposed report). The party may seek the reopening of the record to present testimony or evidence by filing a request with the exceptions.
(2) A party may file a written response to the exceptions within 20 days of service of the exceptions. The party may seek the reopening of the record to present testimony or evidence by filing a request with the response.
(3) If a timely appeal is filed, the presiding officer will transmit the proposed report and order and the certified record to the Secretary.
(4) If a timely appeal is filed, the Secretary will issue the final order under 1 Pa. Code § 35.226 (relating to final orders). The Secretary may reopen the record and order additional briefs.
(5) The presiding officer's proposed report and order will be the Department's final order under section 11 of the act (63 P. S. § 1725.11) if a timely appeal is not made under this section.
(g) This section supplements 1 Pa. Code §§ 35.14, 35.37, 35.185--35.190, 35.201--35.207, 35.211 and 35.226.
§ 501.9. Request for reconsideration of registration denial.
(a) The Office may deny an application for registration if an applicant does not meet the registration requirements of section 5(a) of the act (63 P. S. § 1725.5(a)) or for the grounds contained in section 8(a) of the act (63 P. S. § 1725.8(a)). The Office will provide the applicant with written notification of the denial which states the statutory and regulatory reasons for the denial and sets forth the procedure for requesting reconsideration.
(b) An applicant for registration whose application was denied by the Office may file a request for reconsideration with the Office within 30 days of the date of the notice of denial.
(c) The request for reconsideration must be in writing and include the following:
(1) The applicant's name and address.
(2) The facts supporting the applicant's request for reconsideration.
(3) Supporting documentation demonstrating that the applicant meets the requirements for registration under section 5(a)(2) of the act.
(d) The Office will review the request for reconsideration and issue a written determination containing its decision. If reconsideration is denied, the Office will provide a summary of the reasons in the determination.
(e) If the request is granted, the Office will issue a registration to the applicant if the applicant pays the renewal fee and completes the application under section 5(a)(1) of the act.
(f) An applicant may seek a hearing and appeal the denial of registration under sections 10 and 11 of the act (63 P. S. §§ 1725.10 and 1725.11). The Office and Department will conduct hearings and resolve appeals under § 501.8 (relating to hearings/appeals).
§ 501.10. Biennial registration renewal.
(a) A registrant shall renew the registration biennially to retain the right to continue to provide interpreting or transliterating services, or offer to provide sign language interpreting or transliterating services, or hold himself out as a qualified sign language interpreter or a qualified transliterator or use similar titles or designations under the act.
(b) Registration for a biennium expires December 31 of every even-numbered year.
(c) To renew a registration, a registrant shall submit to the Office before the expiration of the renewal period a completed renewal application supplied by the Office along with the required renewal fee and any late or reactivation fees under § 501.2 (relating to fees).
(d) Biennial registration forms and other forms or literature to be distributed by the Office will be forwarded to the last mailing or electronic address provided to the Office by the registrant. Failure of the Office to send, or of the registrant to receive, a biennial registration application does not relieve the registrant of the biennial registration responsibility.
(e) The Office will issue a nontransferable biennial registration to a registrant who renews registration under this section within 60 days.
§ 501.11. Reactivation of registration.
(a) An individual may reactivate a suspended registration under section 9(c)(1) of the act (63 P. S. § 1725.9(c)(1)) if the following conditions are met:
(1) The suspension term has fully elapsed.
(2) The individual has complied with all of the terms and conditions of the suspension order.
(3) The individual has not violated the act or this chapter during the suspension term.
(4) The individual pays the reactivation fee under § 501.2(4) (relating to fees).
(5) The individual complies with the renewal requirements of § 501.10 (relating to biennial registration renewal).
(b) An individual may obtain registration following revocation of a registration under section 9(c)(2) of the act if the following conditions are met:
(1) At least 5 years have elapsed from the date of the registration revocation.
(2) The individual complied with terms and conditions of the revocation order.
(3) The individual did not violate the act or this chapter during the revocation term.
(4) The individual pays the reactivation fee under § 501.2.
(5) The individual complies with the registration requirements of section 5 of the act and § 501.4 (relating to registration).
§ 501.12. Change of address/name/information.
A registrant shall notify the Office in writing of the following within 10 days:
(1) Any change of name or mailing address
(2) Disciplinary action taken against the registrant's registration, certification or license to provide interpreting or transliterating services by another state or government agency.
§ 501.13. Confidential communications.
Except as provided by law, a sign language interpreter who acquires confidential information while interpreting or transliterating may not be required to disclose the information in any legal proceeding, trial or investigation before a governmental unit without the consent of the individual receiving interpreting or transliterating services. The sign language interpreter shall hold any legal privilege that the individual receiving the services holds.
[Pa.B. Doc. No. 08-2195. Filed for public inspection December 5, 2008, 9:00 a.m.]
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