THE COURTS

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

PART VII. ADMINISTRATIVE
OFFICE OF PENNSYLVANIA COURTS

[204 PA. CODE CH. 221]

Notice of Proposed Amendments to the Regulations for Court Interpreters for Persons with Limited English Proficiency and for Persons Who Are Deaf or Hard of Hearing

[51 Pa.B. 2770]
[Saturday, May 22, 2021]

 The Administrative Office of Pennsylvania Courts is considering amendments to the regulations for court interpreters that synthesize the regulations with the Language Access Plan for the Unified Judicial System; revise restrictions related to remote interpreting; codify and amend the onsite interpreter fee schedule while providing increases to the current onsite interpreter rates; establish a new remote interpreter fee schedule; and include clarifying amendments.

 Proposed new material is underlined and in bold-face type, and deleted material is bracketed and in bold-face type.

 The Explanatory Report highlights the considerations in formulating this proposal. All interested persons are invited to submit suggestions, comments, or objections. All communications in reference to this proposal should be submitted no later than June 21, 2021 to:

Administrative Office of Pennsylvania Courts
ATTN: Interpreter Regulation Comments
601 Commonwealth Avenue
P.O. Box 61260
Suite 1500
Harrisburg, PA 17106
InterpreterRegulationComments@pacourts.us

GEOFF MOULTON, 
Court Administrator of Pennsylvania

Annex A

TITLE 204. JUDICIAL SYSTEM
GENERAL PROVISIONS

PART VII. ADMINISTRATIVE
OFFICE OF PENNSYLVANIA COURTS

CHAPTER 221. [COURT INTERPRETERS] LANGUAGE ACCESS FOR PERSONS WITH
LIMITED ENGLISH PROFICIENCY AND FOR PERSONS WHO ARE DEAF OR HARD OF HEARING

Subchapter 1. GENERAL PROVISIONS

§ 101. Scope.

 These regulations are enacted pursuant to the Language Access Plan for the Unified Judicial System (UJS-LAP) and 42 Pa.C.S. §§ 4411 and 4431 (relating to duties of Court Administrator) and shall govern the appointment and use of interpreters for persons with limited English proficiency and persons who are deaf or hard of hearing in all court proceedings within the Unified Judicial System (UJS).

§ 102. Definitions.

 For purposes of these regulations:

 (a) Appellate Court Prothonotary means the prothonotary responsible for the appellate court in which the judicial proceeding is conducted or his or her designee.

 (b) Certified Interpreter means a person who is certified in accordance with [the guidelines established by the Court Administrator for the certification and appointment of interpreters] this chapter.

 (c) Court Administrator means the Court Administrator of Pennsylvania.

 (d) Deaf or hard of hearing means [an impairment of hearing or speech which] a hearing loss or impairment of speech that creates an inability to understand or communicate the spoken English language.

 (e) Direct victim means an individual against whom a crime has been committed or attempted.

 (f) District Court Administrator means the court administrator responsible for the administration of the courts of the judicial district in which the judicial proceeding is conducted or his or her designee.

 (g) Immediate family member means a person other than a principal party in interest who is a spouse, child, parent, grandparent, or guardian of a principal party in interest.

 (h) Interpret means either:

 (1) within the context of court interpreters for persons with limited English proficiency, to convey spoken and written English into the language of the person with limited English proficiency and to convey spoken and written statements by that person into spoken English; or

 (2) within the context of court interpreters for persons who are deaf or hard of hearing, to convey spoken English in a manner understood by the deaf or hard of hearing person through, but not limited to, American Sign Language and transliteration or any other process, procedure, or means of communication used to convey the communications made by the deaf or hard of hearing person into spoken English.

 (i) Interpreter includes both a certified interpreter and an otherwise qualified interpreter for persons with limited English proficiency and the deaf or hard of hearing.

 (j) Judicial proceeding means an action, appeal, or proceeding in any court of the Commonwealth of Pennsylvania and includes any proceeding conducted by a presiding judicial officer as defined by [§ 102(n)] subsection (o).

 (k) Notice of Language Rights means a multilingual written notice that informs an individual of the right to an interpreter at no cost and how to request an interpreter.

 [(k)] (l) Otherwise qualified interpreter means a person who meets the pertinent requirements of [the guidelines established by the Court Administrator for qualification and appointment of interpreters] this chapter. As with certified interpreters, otherwise qualified interpreters should be chosen from AOPC's Interpreter Certification Program (ICP) roster.

 [(l)] (m) Person who is deaf or hard of hearing means a principal party in interest or a witness who is deaf or hard of hearing.

 [(m)] (n) Person with limited English proficiency means a principal party in interest or a witness who speaks exclusively or primarily a language other than English and is unable to sufficiently speak and understand English so as to fully participate and be understood in a judicial proceeding.

 [(n)] (o) Presiding judicial officer includes justices, judges, magisterial district judges, and appointive judicial officers such as arbitrators, masters, and other like officers.

 [(o)] (p) Principal party in interest means a person involved in a judicial proceeding who is:

 (1) a named party or a fiduciary for a named party;

 (2) a direct victim in a criminal proceeding or a proceeding pursuant to the Juvenile Act, 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

 (3) a parent, guardian, or custodian of a minor or incapacitated person who is:

 (i) a party;

 (ii) a direct victim in a criminal proceeding or a proceeding pursuant to 42 Pa.C.S. Ch. 63; or

 (iii) a witness.

 [(p)] (q) Roster means the list of certified and otherwise qualified interpreters maintained and distributed by the Court Administrator.

 [(q)] (r) Staff Interpreter means a certified [or otherwise qualified] interpreter who is an employee of the appellate court or judicial district and whose duties include providing services as an interpreter and functions related to interpreting.

 [(r)] (s) Transliteration means to convey spoken or written English in an English-based sign language system and the process of conveying an English-based sign language system in spoken or written English. Oral transliteration means conveying spoken English by using speech reading and not sign language.

 [(s)] (t) Witness means a person who testifies in a judicial proceeding.

Comment

 The Administrative Office of Pennsylvania Courts' (AOPC) Interpreter Certification Program roster is available on the Language Access & Interpreter Program page of the UJS website, http://www.pacourts.us.

 The definition of ''Certified Interpreter'' set forth in subsection (b) contains the requirement that the interpreter be certified by the Court Administrator. An interpreter who is certified pursuant to another jurisdiction or organization's policies is [nonetheless] not a certified interpreter under these regulations if that individual has not been certified by the Court Administrator. Therefore, persons charged with applying these regulations should take care to confirm that an interpreter who purports to be certified has, in fact, been certified by the Court Administrator. [A ''Staff Interpreter'' pursuant to subsection (q) is a fulltime employee of the appellate court or judicial district whose duties include providing interpretation services. Persons employed as staff interpreters—even those employed as such on or before the date of the enactment of these regulations—will be required to be certified in their language of expertise by the Court Administrator in order to attain certified status under these regulations, if such certification is available.]

 A ''Staff Interpreter'' pursuant to subsection (r) is a full-time employee of an appellate court or judicial district whose duties include providing interpretation services. Persons employed as staff interpreters—even those employed as such on or before the date of the enactment of these regulations—will be required to be certified in their language of expertise by the Court Administrator in order to attain certified status under these regulations, if such certification is available.

 These regulations are not intended to restrict a deaf or hard of hearing person's ability pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., to request a process, procedure or means of communication other than an interpreter. Under the ADA and its regulations, a deaf or hard of hearing person may request a specific auxiliary aid and the public entity must give primary consideration to that choice unless another effective means of communication exists or it can demonstrate that doing so would fundamentally alter the nature of the service, program or activity or result in undue financial hardship. 28 C.F.R. §§ 35.160[;], 35.164; 28 C.F.R. Pt. 35, App. A.

 See 42 Pa.C.S. § 6302, defining ''custodian'' as ''[a] person other than a parent or legal guardian, who stands in loco parentis to the child, or a person to whom legal custody of the child has been given by order of a court.'' See also Pa.R.C.P. 76, which defines fiduciaries to include ''an executor, administrator, guardian, committee, receiver, trustee, assignee for the benefit of creditors, and any other person, association, partnership, or corporation, acting in any similar capacity.'' Pa.R.C.P. 2051 defines ''incapacitated person'' to include ''an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the person is partially or totally unable to manage financial resources or to meet the essential requirements for physical health and safety.''

§ 103. Confidentiality of Communications.

 As provided in 42 Pa.C.S. §§ 4415 and 4436 (relating to confidential communications in presence of court interpreter), an interpreter appointed pursuant to these regulations shall not be permitted or compelled to testify in any judicial proceeding as to any interpreted statements made by the person for whom he or she is interpreting when that person is engaged in a confidential communication as provided by any statute or general rule, including, but not limited to:

 (a) 42 Pa.C.S. § 5916 (relating to confidential communications to attorney);

 (b) 42 Pa.C.S. § 5928 (relating to confidential communications to attorney);

 (c) 42 Pa.C.S. § 5942 (relating to confidential communications to news reporters);

 (d) 42 Pa.C.S. § 5943 (relating to confidential communications to clergymen);

 (e) 42 Pa.C.S. § 5944 (relating to confidential communications to psychiatrists or licensed psychologists);

 (f) 42 Pa.C.S. § 5945 (relating to confidential communications to school personnel);

 (g) 42 Pa.C.S. § 5945.1 (relating to confidential communications with sexual assault counselors);

 (h) 42 Pa.C.S. § 5945.2 (relating to confidential communications to crime stopper or similar anticrime program); [and]

 (i) 42 Pa.C.S. § 5945.3 (relating to confidential communications to human trafficking caseworkers); and

 [(i)] (j) 23 Pa.C.S. § 6116 (relating to confidential communications to domestic violence counsel/advocates).

§ 104. Remote Interpretation.

 (a) Simultaneous audiovisual technology.—In the event that a certified or otherwise qualified interpreter for persons with limited English proficiency or who are deaf or hard of hearing cannot be found to interpret in person, one may be appointed to interpret via remote technology allowing for two-way simultaneous communication of image and sound such as video remote interpreting (VRI), video-conferencing, closed-circuit television, or web-based camera, provided that the judicial proceeding[:] is expected to be no more than [30 minutes] one hour in duration[; is non-evidentiary; and does not involve more than one interpreter]. Priority should be given to interpreters from AOPC's Interpreter Certification Program (ICP) roster. Prior to utilizing the interpreter, the court must conduct a voir dire to determine his or her qualifications, unless the interpreter is a certified interpreter from AOPC's ICP roster or has been previously used by, and his or her qualifications are known to, the court. The use of VRI should follow guidance issued by the AOPC.

 (b) Telephonic interpretation.—If neither a certified nor otherwise qualified interpreter can be found to interpret in person or by video remote technology allowing for two-way simultaneous communication of image and sound, one may be appointed to interpret remotely via telephone provided the judicial proceeding[:] is expected to be a short, simple proceeding lasting no more than [30 minutes in duration; is non-evidentiary; and does not involve more than one interpreter] one hour. If neither a certified nor otherwise qualified interpreter can be found to interpret via telephone, the court may utilize a telephone interpreter provided by a commercial telephone interpreter service. Prior to utilizing any telephonic interpreter, the court must conduct a voir dire to determine his or her qualifications, unless the interpreter has been previously used by, and his or her qualifications are known to, the court.

 (c) Exceptions.—Preliminary arraignments pursuant to Rule of Criminal Procedure 540 and proceedings for emergency orders under the Protection from Abuse Act (23 Pa.C.S. § 6101 et seq.), the Protection of Victims of Sexual Violence or Intimidation Act (42 Pa.C.S. § 62A1-01 et seq.), and the Older Adults Protective Services Act (35 P.S. § 10225.101 et seq.) may be conducted via remote technology without regard to subsections (a) and (b) above, except that a voir dire still must be conducted to determine the interpreter's qualifications, unless the interpreter is a certified interpreter from AOPC's ICP roster or has been previously used by, and his or her qualifications are known to, the court.

Comment

 Although this regulation allows for remote interpretation under certain limited circumstances, interpretation in person is strongly preferred. Pursuant to subsections (a) and (b), if an interpreter [can not] cannot be found to interpret in person, the next step should be to find one to interpret via remote means that allow for two-way simultaneous communication of image and sound. It is only after determining that an interpreter cannot be found to interpret via two-way simultaneous communication of image and sound that the court should consider an audio-only device such as a telephone.

 Moreover, courts should be cautious in their use of video remote platforms (such as Zoom and Microsoft Teams) to facilitate virtual hearings. When using remote platforms, courts should follow guidance issued by the AOPC, use interpreters from AOPC's ICP roster, do a practice run using the remote platform in advance of the hearing, and, if unable to secure a rostered interpreter for the proceeding, voir dire the interpreter to ascertain his or her qualifications.

§ 105. Waiver of Interpreter.

 (a) Waiver by a principal party in interest.—A principal party in interest with limited English proficiency or [party] who is deaf or hard of hearing may waive the right to an interpreter provided the waiver is conducted in the presence of the presiding judicial officer and the party seeking to waive is represented by counsel or has knowingly waived the right to counsel. The presiding judicial officer shall ascertain from the principal party in interest with limited English proficiency or [party] who is deaf or hard of hearing whether the waiver is knowing, voluntary and intelligent and that the waiver will not impede the party's communication with the court and the fact finder. If the judicial proceeding is conducted in a court of record, the foregoing determination shall be made on the record. The principal party in interest with limited English proficiency or [party] who is deaf or hard of hearing must be provided with an interpreter during the waiver process. In addition, the waiver shall be in writing signed by the principal party in interest with limited English proficiency or [party] who is deaf or hard of hearing, with a representation that the party was told of the right to an interpreter and that the party chose not to have an interpreter at the judicial proceeding. The written waiver shall be on the form provided by the Court Administrator for this purpose and shall be made part of the record of the judicial proceeding. If the presiding judicial officer subsequently determines that an interpreter is necessary, he or she shall proceed pursuant to § 204(b) (relating to determination of need for interpreter).

 (b) Waiver by a non-party.—When a non-party who is entitled to an interpreter under these regulations seeks to waive the right to an interpreter, the provisions of subsection (a) above should be followed, with the exception that counsel need not be present.

Comment

 When persons with limited English proficiency or [persons] who are deaf or hard of hearing waive their right to an interpreter pursuant to § 105, they are divesting themselves of an important due process safeguard. For this reason, the presiding judicial officer should take great care to ensure that the person's waiver is knowing, voluntary and intelligent. When deciding whether to permit waiver the presiding judicial officer should consider not only the needs of the person with limited English proficiency or person who is deaf or hard of hearing, but also the needs of the presiding judicial officer and others involved in the proceedings to accurately understand that person. In the case of persons with limited English proficiency or who are deaf or hard of hearing who are witnesses, the presiding judicial officer should primarily consider the need for the finder of fact to accurately understand the witness and whether a party in interest wants an interpreter present to ensure the accuracy of the testimony rather than the preference of the witness. If the presiding judicial officer feels that the interpreter is necessary for the presiding judicial officer or others involved in the proceedings to accurately understand the person with limited English proficiency or [person] who is deaf or hard of hearing, the waiver request should be denied. Waiver forms are available on the Language Access & Interpreter Program page of the UJS website: http://www.pacourts.us.

§ 106. Oath for Interpreters.

 Before commencement of interpreter duties, an interpreter shall take the following oath:

Do you solemnly swear or affirm that you will make an accurate, complete, and impartial interpretation from the English language into the (target language), and vice-versa, of all communication during this proceeding using your best skill, judgment, and ability and that you will abide by the Rules of Professional Conduct for Judiciary Interpreters, and so you do swear or affirm?

 Once the oath is administered, the interpreter becomes an officer of the court for the duration of his or her appointment.

§ 107. Cost of Providing Interpreters for Persons with Limited English Proficiency.

 (a) General rule.—An interpreter appointed pursuant to § [203] 205 (relating to appointment of interpreters) for a principal party in interest or a witness is entitled to a reasonable fee for interpreter services and shall be reimbursed for actual and reasonable expenses by the county of the court or the appellate court that has jurisdiction over the judicial proceeding in accordance with the compensation schedule approved by the Court Administrator pursuant to 42 Pa.C.S. § 4411(d). In no event shall the costs of providing interpreter services be the responsibility of the person who is limited English proficient (LEP).

 (b) Assignment of costs.—In those cases where appointment of an interpreter is discretionary as specified in [section 203(d)] § 205(d) regarding appointment of interpreters for immediate family members, the presiding judicial officer may order reimbursement by the family member to the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed for its responsibilities under this chapter. In determining the amount of actual and reasonable expenses to be paid to the interpreter, the presiding judicial officer shall follow the fee schedule for interpreters established by the Court Administrator.

Comment

 [The compensation schedule referred to in subsection (a) will be published in the Pennsylvania Bulletin and the official web site of the Administrative Office of Pennsylvania Courts and will be subject to periodic review. In a judicial district comprised of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.]

 A copy of the interpreter fee schedules for both onsite and remote interpreting can be found in Schedule G and on the Interpreter Program page of the UJS website, http://www.pacourts.us.

 In a judicial district comprised of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.

§ 108. Costs of Providing Interpreters for Persons who are Deaf or Hard of Hearing.

 [(a)] General rule.—[Except as provided in subsection (b), an] An interpreter appointed in accordance with [§ 203] § 205 is entitled to a reasonable fee for his or her services and shall be reimbursed for actual and reasonable expenses by the county of the court that has jurisdiction over the judicial proceeding in accordance with the compensation schedule approved by the Court Administrator pursuant to 42 Pa.C.S. § 4431(d). [Except as provided in subsection (b), expenses] Expenses related to interpreters appointed for appellate judicial proceedings shall be the responsibility of the appellate court. In no event shall the cost of providing interpreter services be the responsibility of the person who is deaf or hard of hearing.

 [(b) Payment determination of costs related to appointment of interpreters for immediate family members.—Disposition of all or part of the cost of providing an interpreter appointed in accordance with § 203(d) (interpreter for immediate family members) shall be in the discretion of the court that has jurisdiction over the judicial proceeding and in accordance with the compensation schedule approved by the Court Administrator. If the principal party in interest is indigent, the cost of providing interpreter services shall be the responsibility of the county of the court or the appellate court that has jurisdiction over the judicial proceeding for which the interpreter was appointed. The presiding judicial officer may order reimbursement to the county or the appellate court for its responsibilities under this chapter. In no event shall the cost of providing interpreter services be the responsibility of the person who is deaf or hard of hearing.]

Comment

 [The compensation schedule referred to in subsection (a) will be published in the Pennsylvania Bulletin and the official website of the Administrative Office of Pennsylvania Courts and will be subject to periodic review. In a judicial district composed of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.

 Subsection (b) is designed to give the court discretion in assessing the costs of providing an interpreter for immediate family members pursuant to § 203(d). This discretion, however, should never extend to requiring the person who is deaf or hard of hearing to pay the cost of the interpreter.]

 A copy of the interpreter fee schedules for both onsite and remote interpreting can be found in Schedule G and on the Interpreter Program page of the UJS website, http://www.pacourts.us.

 In a judicial district composed of more than one county, the county of the court that has jurisdiction over the judicial proceedings is the county in which the cause of action arose.

Subchapter 2.  PROCEDURES FOR NOTIFICATION AND DETERMINATION OF THE NEED FOR, AND FOR THE PROCUREMENT AND APPOINTMENT OF, INTERPRETERS

[§ 201. Notice of Need for Interpreter; Procurement of Certified and Otherwise Qualified Interpreters.

 (a) Persons required to give notice; persons to whom notice is to be given; timing of notice.—

 (1) If a principal party in interest is a person with limited English proficiency or a person who is deaf or hard of hearing and is in need of an interpreter, either the principal party in interest or his or her attorney shall give notice of the need for an interpreter as soon as is practicable after learning of the need. The notice shall be made to the presiding judicial officer or the Appellate Court Prothonotary/District Court Administrator or his or her designee and contain the information required in subsection (b)(2) of this regulation.

 (2) If the person with limited English proficiency or person who is deaf or hard of hearing is a witness, notice of the need for an interpreter shall be given by the party that intends to call the person as a witness as soon as is practicable after learning of the need. The notice shall be made to the presiding judicial officer or the Appellate Court Prothonotary/District Court Administrator or his or her designee and contain the information required in subsection (b)(2) of this regulation.

 (3) If the person with limited English proficiency or person who is deaf or hard of hearing is a direct victim, notice of the need for an interpreter shall be given by the Commonwealth as soon as is practicable after learning of the need. The notice shall be made to the presiding judicial officer or the Appellate Court Prothonotary/District Court Administrator or his or her designee and contain the information required in subsection (b)(2) of this regulation.

 (4) In addition to the foregoing persons, anyone with knowledge of a principal party in interest, witness or direct victim's need for an interpreter may give notice of that need to the presiding judicial officer or the Appellate Court Prothonotary/District Court Administrator or his or her designee and contain the information required in subsection (b)(2) of this regulation.

 (b) Form and content of notice.—

 (1) Notice form.—The notice of need for an interpreter should be given on the form provided by the Court Administrator for this purpose, if practicable. If notice by way of said form is not practicable, written or oral notice may be given provided it contains the information set forth in subsection (b)(2) below.

 (2) Content of notice.—The notice of need for an interpreter, whether on the form specified in subsection (b)(1) or otherwise, must contain at minimum the following information:

 (i) party and case identifying information; and

 (ii) for a person with limited English proficiency, the language spoken (specifying any particular dialect or regional version) and the country of origin; or

 (iii) for a person who is deaf or hard of hearing, the type of sign language or method of communication used, the country of origin (if a foreign sign language is used to communicate), and a description of any educational, physical, mental or other particular condition which may limit the person's ability to communicate.

 (c) Procurement of certified or otherwise qualified interpreters.—

 (1) Once the Appellate Court Prothonotary/District Court Administrator or his or her designee is made aware of the need for an interpreter, he or she shall procure a certified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of certified interpreters.

 (2) If the Appellate Court Prothonotary/District Court Administrator or his or her designee cannot procure a certified interpreter in the manner set forth in subsection (c)(1) above, he or she shall procure an otherwise qualified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters.

Comment

 Subsection (a) requires that notice be given as soon as practicable after learning of the need. The fact that no specific time limit is given is in recognition of the fact that situations may arise in which significant advance notice is not feasible. Nevertheless, the party responsible for giving notice under these regulations or anyone aware of the need must notify the presiding judicial officer or Appellate Court Prothonotary/District Court Administrator or his or her designee as soon as the need for an interpreter is known so as to avoid unnecessary delay.

 Subsection (b)(1) makes clear that notice on the form provided by the Court Administrator is the preferred method of providing notice of need for an interpreter. If use of the Court Administrator's form is not practicable, other written or oral notice is acceptable provided it conveys the information set forth in subsection (b)(2).

 The regulations do not require that only one person be designated by the District Court Administrator to handle requests for interpreters in the district. Different individuals can be assigned to handle different courts within the district. For example, the designee for common pleas interpreter requests may be the District Court Administrator while for cases in the magisterial district courts the special or minor courts administrator could be designated.

 In the case of a deaf or hard of hearing juror, the District Court Administrator or his or her designee should follow the judicial district's existing policies pursuant to the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq., to ensure proper accommodation of a deaf or hard of hearing juror. Juror summonses and/or questionnaires should advise prospective jurors to give notice of need for an accommodation prior to the date they report for jury duty.

 Subsection (c)(1) requires the Appellate Court Prothonotary/District Court Administrator or his or her designee to follow the Court Administrator's guidelines for appointing a certified interpreter and to make the necessary arrangements to secure the interpreter's services for the judicial proceeding if one is found. If a certified interpreter cannot be found, subsection (c)(2) requires the Appellate Court Prothonotary/District Court Administrator or his or her designee to obtain an otherwise qualified interpreter in the manner provided in the Court Administrator's guidelines. In procuring either a certified or otherwise qualified interpreter, and when the person requiring the interpreter is a person with limited English proficiency, the Appellate Court Prothonotary/District Court Administrator or his or her designee may obtain the services of an interpreter to interpret remotely subject to the limitations of § 104. In the event that neither a certified nor an otherwise qualified interpreter can be procured, the Appellate Court Prothonotary/District Court Administrator or his or her designee shall contact the Court Administrator's office for guidance.

§ 202. Determination of Need for Interpreter.

 (a) Proceedings to determine need for an interpreter.—If, after considering the notice of need, the presiding judicial officer requires additional information in order to make the determination, he or she may request any additional filings from the parties or conduct any proceedings he or she deems necessary including, but not limited to, conducting the voir dire for determination of need for an interpreter for persons with limited English proficiency established by the Court Administrator. If the Appellate Court Prothonotary/District Court Administrator or his or her designee requires additional information, he or she may request additional information and may request that the presiding judicial officer conduct proceedings to determine the need for an interpreter.

 (b) If, during the course of the judicial proceedings, and without regard to whether notice of need for an interpreter was given, the presiding judicial officer determines that a principal party in interest, witness, or direct victim is a person with limited English proficiency or that a principal party in interest, witness, direct victim or juror is deaf or hard of hearing and is in need of an interpreter, he or she shall give notice to the Appellate Court Prothonotary/District Court Administrator or his or her designee as provided in subsection (b) of this regulation.

Comment

 Subsection (a) covers situations where the person notified of need for an interpreter pursuant to § 201 requires additional information. It also allows the presiding judicial officer to acquire additional information in order to make the determination of need by way of supplemental filings, hearings and any other means typically within the presiding judicial officer's power in handling the particular judicial proceeding and, in the case of persons with limited English proficiency, suggests using the voir dire established by the Court Administrator for assessing the level of English proficiency of the individual in question. The Appellate Court Prothonotary/District Court Administrator may request additional information but is not empowered to conduct any proceedings to gather information.

 Subsection (b) is intended to clarify that even if notice of the need for an interpreter is not given by one of the individuals required to give notice under § 201(a), the presiding judicial officer may sua sponte determine the need for an interpreter and thereby start the appointment process if he or she deems it appropriate to do so under these regulations.

§ 203. Appointment of Interpreters.

 (a) Appointment of a certified interpreter.—The presiding judicial officer shall appoint the certified interpreter procured pursuant to § 201(c)(1) unless a certified interpreter is unavailable.

 (b) Appointment of an otherwise qualified interpreter.—

 (1) An otherwise qualified interpreter shall be appointed by the presiding judicial officer if the presiding judicial officer determines that the Appellate Court Prothonotary/District Court Administrator or his or her designee made a good faith effort to procure a certified interpreter and a certified interpreter was not available and that the otherwise qualified interpreter was properly procured pursuant to § 201(c)(2). In making the foregoing determinations the presiding judicial officer shall consider the efforts made by the Appellate/District Court Administrator or his or her designee and whether these efforts complied with the requirements of § 201(c).

 (i) Persons with limited English proficiency.— Prior to the appointment of the otherwise qualified interpreter for a person with limited English proficiency, the presiding judicial officer shall determine the interpreter's qualifications by:

 (A) conducting the voir dire for qualifying interpreters for persons with limited English proficiency recommended by the Court Administrator;

 (B) ascertaining that the otherwise qualified interpreter has read, understands and agrees to abide by the Rules of Professional Conduct for Judiciary Interpreters established by the Court Administrator; and

 (C) verifying that the otherwise qualified interpreter is listed in the interpreter roster published by the Court Administrator.

 (ii) Persons who are deaf or hard of hearing.— Prior to the appointment of the otherwise qualified interpreter for a person who is deaf or hard of hearing, the presiding judicial officer shall determine the interpreter's qualifications by:

 (A) conducting the voir dire for qualifying interpreters for persons who are deaf or hard of hearing recommended by the Court Administrator;

 (B) ascertaining that the otherwise qualified interpreter has read, understands and agrees to abide by the National Association of the Deaf (NAD)—Registry of Interpreters for the Deaf (RID) code of professional conduct, and the Rules of Professional Conduct for Judiciary Interpreters established by the Court Administrator;

 (C) verifying that the otherwise qualified interpreter is listed in the interpreter roster published by the Court Administrator;

 (D) verifying that the otherwise qualified interpreter is certified by the NAD or RID, by asking to see the interpreter's membership card; and

 (E) that the otherwise qualified interpreter has complied with the requirements of the Sign Language Interpreter and Transliterator State Registration Act, 63 P.S. § 1725.1 et seq., and is registered with the Office for the Deaf and Hard of Hearing (ODHH) within the Department of Labor and Industry of the Commonwealth.

 (2) In ascertaining whether an individual is able to interpret and should be appointed as an otherwise qualified interpreter, the presiding judicial officer shall follow the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters for persons with limited English proficiency or for persons who are deaf or hard of hearing.

 (c) Additional interpreter(s).—After consideration of the type and length of the judicial proceeding and the number of persons requiring interpreters involved, the presiding judicial officer may appoint, as provided for in subsections (a) and (b), an additional interpreter or provide for additional interpretation in a manner deemed appropriate by the presiding judicial officer. In making this determination, the presiding judicial officer shall follow the guidelines established by the Court Administrator for the appointment of additional interpreters for persons with limited English proficiency or for persons who are deaf or hard of hearing.

 (d) Interpreter for immediate family.—The presiding judicial officer may appoint, as provided in subsections (a) and (b), an interpreter or provide for additional interpretation, as provided in subsection (c), for an immediate family member of a principal party in interest.

 (e) Persons who are not to be appointed as interpreters.—Under no circumstances should the presiding judicial officer appoint a family member of the person with limited English proficiency or person who is deaf or hard of hearing, a witness, party, or other persons who may have an interest in the outcome of a judicial proceeding or those who may be perceived to have an interest in the outcome (i.e., police officers, sheriff's deputies, constables, etc.) to act as an interpreter for that person.

Comment

 Subsection (a) of § 203 authorizes the presiding judicial officer to appoint a certified interpreter after the steps outlined in §§ 201 and 202 have been taken. If the judicial proceeding is conducted in a court of record, the formal appointment of either a certified interpreter or an otherwise qualified interpreter should always be done on the record at the first appearance of the interpreter at the proceeding. Subsection (c) allows for the appointment of a team of interpreters if the judicial proceeding is a jury trial, is likely to be more than two hours in duration, or, in the case of a deaf or hard of hearing person, whenever the limitations and particularities of the person's form of communication (such as when the deaf or hard of hearing person is a foreign national who does not communicate in any of the forms of sign language spoken in this country) requires it.]

§ 201. Notices to be Provided Concerning Right to an Interpreter.

 (a) District Court Administrators, presiding judicial officers, judicial staff, and filing offices must ensure that a Notice of Language Rights is provided to named parties and witnesses for all judicial proceedings.

 (b) Every notice or subpoena for any judicial proceeding, as defined in § 102, including summary trials before a presiding judicial officer as defined in § 102, must include a multilingual Notice of Language Rights. This notice shall inform the recipient of the right to a court-appointed interpreter at no cost and the process for requesting one.

 (c) Information concerning language rights and services available must be conspicuously displayed on posters, cards, and brochures throughout court facilities, posted on court websites, and provided to the public, justice partners, legal aid agencies, and community-based organizations.

Comment

 The Notice of Language Rights created pursuant to the Language Access Plan for the UJS provides contact information for the language access coordinator (LAC) for each judicial district, and informs LEP and deaf or hard of hearing parties that they may contact the LAC to arrange for an interpreter.

§ 202. Persons to Notify Court Concerning Need for Interpreters.

 (a) The following persons shall give notice to the court where a person has limited English proficiency or is deaf or hard of hearing and requires an interpreter for any judicial proceeding:

 (1) For a principal party in interest in a judicial proceeding, either the principal party in interest or his or her attorney, without delay.

 (2) For a witness in a judicial proceeding, the party that intends to call the person as a witness as soon as is practicable after learning of the need for an interpreter.

 (3) For a crime victim whose presence is anticipated at a judicial proceeding, the affiant, law enforcement officer, or the attorney for the Commonwealth, as soon as is practicable after learning of the need.

 (b) Any other person with knowledge that a principal party in interest, witness, or crime victim will require an interpreter may give notice of the need for an interpreter.

 (c) Notice to the Court pursuant to this section may be made to the presiding judicial officer, the language access coordinator (LAC) for the judicial district in which the proceeding will be held, or the Appellate Court Prothonotary/District Court Administrator or his or her designee, and should contain the information required in subsection (d)(2).

 (d) Form and content of notice.—

 (1) Notice form.—The notice of need for an interpreter should be given on the form provided by the Court Administrator, if practicable. If notice by way of said form is not practicable, written or oral notice may be given provided it contains the information set forth in paragraph (2).

 (2) Content of notice.—The notice of need for an interpreter, whether on the form specified in paragraph (1) or otherwise, must contain, at a minimum, the following information:

 (i) party and case identifying information; and

 (ii) for a person with limited English proficiency, the language spoken (specifying any particular dialect or regional version) and the country of origin; or

 (iii) for a person who is deaf or hard of hearing, the type of sign language or method of communication used, the country of origin (if a foreign sign language is used to communicate), and any other information that will help identify the person's preferred means of communication.

Comment

 This section is intended to clarify those persons who are required to provide notice to the court of the need for an interpreter for an LEP or deaf or hard of hearing person. In addition, subsection (b) provides that any person may provide notice of the need for an interpreter when they have knowledge that someone appearing in a judicial proceeding is LEP or deaf or hard of hearing.

 Subsection (a) requires that notice be given without delay or as soon as practicable after learning of the need. The fact that no specific time limit is given is in recognition of the fact that situations may arise in which significant advance notice is not feasible. Nevertheless, the party responsible for giving notice under these regulations or anyone aware of the need must notify the presiding judicial officer or Appellate Court Prothonotary/District Court Administrator or his or her designee as soon as the need for an interpreter is known so as to avoid unnecessary delay.

 Subsection (d)(1) makes clear that notice on the form provided by the Court Administrator is the preferred method of providing notice of need for an interpreter. If use of the Court Administrator's form is not practicable, other written or oral notice is acceptable provided it conveys the information set forth in subsection (d)(2). The request form can be found on the Interpreter Program page of the UJS website, http://www.pacourts.us.

§ 203. Procurement of Certified or Otherwise Qualified Interpreters.

 (a) Once the Appellate Court Prothonotary/District Court Administrator or his or her designee is made aware of the need for an interpreter, he or she shall procure a certified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of certified interpreters.

 (b) If the Appellate Court Prothonotary/District Court Administrator or his or her designee cannot procure a certified interpreter in the manner set forth in subsection (a), he or she shall procure an otherwise qualified interpreter in the manner provided by the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters.

 (c) Courts shall utilize existing mechanisms available in statewide case management systems and shall develop mechanisms in conjunction with their filing offices to track the need for an interpreter throughout the life cycle of a case.

Comment

 The regulations do not require that only one person be designated by the Appellate Court Prothonotary/District Court Administrator to handle requests for interpreters. For example, the designee for common pleas interpreter requests may be the District Court Administrator, while for cases in the magisterial district courts, the special or minor courts administrator could be designated. A complete list of LACs is available on the Language Access and Interpreter Program page of the UJS website, http://www.pacourts.us.

 In the case of a deaf or hard of hearing juror, the District Court Administrator or his or her designee should follow the judicial district's existing policies pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., to ensure proper accommodation of a deaf or hard of hearing juror. Juror summonses and/or questionnaires should advise prospective jurors to give notice of need for an accommodation prior to the date they report for jury duty.

 Subsection (a) requires the Appellate Court Prothonotary/District Court Administrator or his or her designee to follow the Court Administrator's guidelines for appointing a certified interpreter and to make the necessary arrangements to secure the interpreter's services for the judicial proceeding if one is found. If a certified interpreter cannot be found, subsection (b) requires the Appellate Court Prothonotary/District Court Administrator or his or her designee to obtain an otherwise qualified interpreter in the manner provided in the Court Administrator's guidelines. In procuring either a certified or otherwise qualified interpreter, and when the person requiring the interpreter is a person with limited English proficiency, the Appellate Court Prothonotary/District Court Administrator or his or her designee may obtain the services of an interpreter to interpret remotely subject to the limitations of § 104. In the event that neither a certified nor an otherwise qualified interpreter can be procured, the Appellate Court Prothonotary/District Court Administrator or his or her designee shall contact the Court Administrator's office for guidance.

 The requirement in subsection (c) comes from the Language Access Plan for the Unified Judicial System (UJS-LAP), available at http://www.pacourts.us. UJS-LAP at 31, ''Documentation of Language Needs.''

§ 204. Determination of Need for Interpreter.

 (a) Proceedings to determine need for an interpreter.—Ordinarily, the presiding judicial officer must appoint an interpreter after notice of need for an interpreter is given or a request for an interpreter is made. If, after considering the notice of need, the presiding judicial officer requires additional information in order to make the determination that the person is LEP or deaf or hard of hearing, or of the appropriate language or means of communication with the interpreter, he or she may request any additional filings from the parties or conduct any proceedings he or she deems necessary including, but not limited to, conducting the voir dire for determination of need for an interpreter for persons with limited English proficiency or who are deaf or hard of hearing established by the Court Administrator. If the Appellate Court Prothonotary/District Court Administrator or his or her designee requires additional information, he or she may request additional information and may request that the presiding judicial officer conduct proceedings to determine the need for an interpreter.

 (b) If, during the course of the judicial proceeding, and without regard to whether notice of need for an interpreter was given, the presiding judicial officer determines that a principal party in interest or a witness is a person with limited English proficiency or that a principal party in interest, witness, direct victim, or juror is deaf or hard of hearing and is in need of an interpreter, he or she shall give notice to the Appellate Court Prothonotary/District Court Administrator or his or her designee as provided in § 202(d) (relating to persons to notify court concerning need for interpreters).

Comment

 Presiding judicial officers, the Appellate Court Prothonotary/District Court Administrator and their designees taking action under this section must do so in compliance with the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the regulations promulgated thereunder, 28 C.F.R. 42.101 et seq., as well as the stated purpose of 42 Pa.C.S. Ch. 44 (relating to court interpreters). See 42 Pa.C.S. § 4401 (relating to legislative findings and declaration).

 Persons who request language access services should be provided with them. Subsection (a) covers the exceptional circumstance where the person notified of need for an interpreter may require additional information. This subsection permits a presiding judicial officer to acquire additional information in order to make the determination of need by way of supplemental filings, hearings, and any other means typically within the presiding judicial officer's power in handling the particular judicial proceeding and, in the case of persons with limited English proficiency, suggests using the voir dire established by the Court Administrator for assessing the level of English proficiency of the individual in question. The Appellate Court Prothonotary/District Court Administrator may request additional information but is not empowered to conduct any proceedings to gather information.

 Subsection (b) is intended to clarify that even if notice of the need for an interpreter is not given by one of the individuals required to give notice under § 202(a), the presiding judicial officer may sua sponte determine the need for an interpreter and thereby start the appointment process if he or she deems it appropriate to do so under these regulations.

§ 205. Appointment of Interpreters.

 (a) Appointment of a certified interpreter.—The presiding judicial officer shall appoint the certified interpreter procured pursuant to § 203(a) (relating to procurement of certified interpreters) unless a certified interpreter is unavailable.

 (b) Appointment of an otherwise qualified interpreter.—

 (1) An otherwise qualified interpreter shall be appointed by the presiding judicial officer if the presiding judicial officer determines that the Appellate Court Prothonotary/District Court Administrator or his or her designee made a good faith effort to procure a certified interpreter and a certified interpreter was not available and that the otherwise qualified interpreter was properly procured pursuant to § 203(b). Otherwise qualified interpreters should also be chosen, if available, from the roster. In making the foregoing determinations, the presiding judicial officer shall consider the efforts made by the Appellate Court Prothonotary/District Court Administrator or his or her designee and whether these efforts complied with the requirements of § 203.

 (i) Persons with limited English proficiency.—

 Prior to the appointment of the otherwise qualified interpreter for a person with limited English proficiency, the presiding judicial officer shall determine the interpreter's qualifications by:

 (A) verifying that the otherwise qualified interpreter is listed in the interpreter roster published by the Court Administrator. This can be accomplished in a number of ways, including but not limited to asking the interpreter to present their Interpreter Certification Program card issued by AOPC. Where the interpreter is on the roster, steps (B) and (C) below are not necessary.

 (B) conducting the voir dire for qualifying interpreters for persons with limited English proficiency; and

 (C) ascertaining that the otherwise qualified interpreter has read, understands, and agrees to abide by the Rules of Professional Conduct for Judiciary Interpreters. See Schedule F of these regulations.

 (ii) Persons who are deaf or hard of hearing.— Prior to the appointment of the otherwise qualified interpreter for a person who is deaf or hard of hearing, the presiding judicial officer shall determine the interpreter's qualifications by:

 (A) conducting the voir dire for qualifying interpreters for persons who are deaf or hard of hearing recommended by the Court Administrator;

 (B) verifying that the otherwise qualified interpreter is certified by the National Association of the Deaf (NAD) or Registry of Interpreters for the Deaf (RID), by asking to see the interpreter's membership card;

 (C) ascertaining that the otherwise qualified interpreter has read, understands, and agrees to abide by the NAD-RID code of professional conduct, and the Rules of Professional Conduct for Judiciary Interpreters established by the Court Administrator;

 (D) verifying that the otherwise qualified interpreter is listed in the interpreter roster published by the Court Administrator by asking them to present their ICP card issued by AOPC; and

 (E) verifying that the otherwise qualified interpreter has complied with the requirements of the Sign Language Interpreter and Transliterator State Registration Act, 63 P.S. § 1725.1 et seq., and is registered with the Office for the Deaf and Hard of Hearing (ODHH) within the Pennsylvania Department of Labor and Industry.

 (2) In ascertaining whether an individual is able to interpret and should be appointed as an otherwise qualified interpreter, the presiding judicial officer shall follow the guidelines established by the Court Administrator for the appointment of otherwise qualified interpreters for persons with limited English proficiency or for persons who are deaf or hard of hearing and these regulations.

 (c) Additional interpreter(s).—After consideration of the type and length of the judicial proceeding and the number of persons requiring interpreters involved, the presiding judicial officer may appoint, as provided for in subsections (a) and (b), an additional interpreter or provide for additional interpretation in a manner deemed appropriate by the presiding judicial officer. The presiding judicial officer should appoint a team of interpreters in the following circumstances: where a bench trial, jury trial, or other judicial proceeding is expected to last longer than two hours; in capital cases; in cases involving complex subject matter and expert witnesses; or whenever three or more persons need the services of the interpreter and there is no simultaneous remote interpreting equipment available in the courtroom. In making this determination, the presiding judicial officer shall follow the guidelines established by the Court Administrator for the appointment of additional interpreters for persons with limited English proficiency or for persons who are deaf or hard of hearing.

 (d) Interpreter for immediate family.—The presiding judicial officer may appoint, as provided in subsections (a) and (b), an interpreter or provide for additional interpretation, as provided in subsection (c), for an immediate family member of a principal party in interest.

 (e) Persons who are not to be appointed as interpreters.—Under no circumstances should the presiding judicial officer appoint a family member of the person with limited English proficiency or person who is deaf or hard of hearing, a witness, party, or other persons who may have an interest in the outcome of a judicial proceeding or those who may be perceived to have an interest in the outcome (e.g., police officers, sheriff's deputies, constables, lawyers in the case, advocates assisting the parties, etc.) to act as an interpreter for that person.

Comment

 Subsection (a) authorizes the presiding judicial officer to appoint a certified interpreter after the steps outlined in §§ 202, 203, and 204 have been taken. If the judicial proceeding is conducted in a court of record, the formal appointment of either a certified interpreter or an otherwise qualified interpreter should always be done on the record at the first appearance of the interpreter at the proceeding.

 Subsection (c) recommends the appointment of a team of interpreters if the judicial proceeding is a trial, is likely to be more than two hours in duration, or, in the case of a deaf or hard of hearing person, whenever the limitations and particularities of the person's form of communication require it (such as when the deaf or hard of hearing person is a foreign national who does not communicate in any of the forms of sign language spoken in this country). In addition, judicial officers should be aware that accuracy of interpretation can decline substantially after 30 minutes of continuous interpretation and should provide the interpreter with regular breaks accordingly.

§ [204] 206. Replacement or Removal of Interpreter.

 (a) The presiding judicial officer shall dismiss an interpreter and obtain the services of another interpreter in accordance with this chapter if the interpreter:

 (1) fails to follow the standards prescribed by law, by the Rules of Professional Conduct for Judiciary Interpreters established by the Court Administrator or the NAD-RID code of professional conduct or any other professional organization regulating the interpreter, by engaging in conduct such as, but not limited to:

 (i) knowingly and willfully making false, misleading, or incomplete interpretation while serving in an official capacity;

 (ii) knowingly and willfully disclosing confidential or privileged information obtained while serving in an official capacity;

 (iii) failing to reveal potential conflicts of interest;

 (iv) misrepresenting his or her credentials; or

 (v) failing to appear as scheduled without good cause.

 (2) is unable to effectively communicate with the presiding judicial officer or the person with limited English proficiency or the person who is deaf or hard of hearing, including where the interpreter self-reports such inability.

 (b) In the event a presiding judicial officer removes an interpreter for the grounds specified in subsection (a)(1), he or she shall notify the Court Administrator.

Comment

 Subsection (b) requires that a presiding judicial officer inform the Court Administrator whenever an interpreter has to be removed for failing to follow standards prescribed by law or the Rules of Professional Conduct for Judiciary Interpreters established by the Court Administrator, the NAD-RID code of professional conduct or any other professional organization regulating the interpreter. This mandatory reporting requirement allows the Court Administrator to enforce the applicable standards and Rules of Professional Conduct for Judiciary Interpreters. In addition to reporting violations resulting in removal of a court interpreter, the presiding judicial officer is encouraged to report any other suspected violations of legal standards, the Rules of Professional Conduct for Judiciary Interpreters, failure to follow Interpreter Certification Program guidelines, the Sign Language Interpreter and Transliterator State Registration Act, 63 P.S. § 1725.1 et seq., and the standards of the Department of Labor and Industry's Office of the Deaf and Hard of Hearing (ODHH), even if the suspected violations are not sufficient to cause the presiding judicial officer to remove the interpreter.

Subchapter 3. CERTIFICATION REQUIREMENTS.

§ 301. Interpreter Certification Requirements.

 To become certified or otherwise qualified, interpreters shall meet the requirements set forth in this chapter.

§ 302. Registration.

 All interpreters must register with the [Interpreter Certification Program] ICP by completing a registration form. Registration is free and indicates the interpreter's willingness to become certified according to program guidelines. Sign language interpreters must also register with the Office for the Deaf and Hard of Hearing (ODHH) within the Department of Labor and Industry of the Commonwealth as required by the Sign Language Interpreter and Transliterator State Registration Act, 63 P.S. § 1725.1 et seq. if they hold a Registry of Interpreters for the Deaf (RID) or National Association of the Deaf (NAD) certificate.

Comment

 [As of January 1, 2010, only] Only registered interpreters who have attended an orientation workshop, passed the written examination, and passed [the simultaneous part of] all three parts of the oral examination[,] can work in the Unified Judicial System [pending the outcome of their certification process] (UJS). Registration forms are available on the [ICP web site: www.pacourts.us/t/aopc/courtinterpreter prog] Language Access & Interpreter page of the UJS website, http://www.pacourts.us.

§ 303. Orientation Workshop.

 Interpreters must attend a two-day orientation workshop sponsored by the ICP. Schedule A of these regulations contains a list of the topics covered by the orientation workshop.

§ 304. Examinations.

 (a) Written examination.—After completing the orientation workshop, interpreters are eligible to take the written examination. The written exam is designed to measure the interpreter's general English language proficiency and usage, knowledge of court-related terms, and familiarity with ethical and professional conduct.

 (1) Multiple choice.—The first part of the written examination consists of multiple-choice questions. All interpreters, regardless of the language they interpret, must take the multiple choice part of the examination. Schedule B of these regulations discusses the number of questions on the multiple choice portion of the examination and the minimum number of questions that must be answered correctly for an interpreter to pass.

 (2) Foreign Language Assessment Exercise.—Interpreters who interpret languages for which there is a full or abbreviated oral proficiency examination must also take and pass a foreign language assessment exercise. Interpreters who interpret in more than one language for which a full or abbreviated oral examination exists must take the foreign language assessment exercise for each language. Interpreters must pass both the multiple-choice examination and the foreign language assessment exercise.

 If no full or abbreviated oral exam exists in any of an interpreter's working languages, he or she is not required to take the foreign language assessment exercise. Sign language interpreters are exempt from taking the foreign language assessment exercise.

Comment

 Interpreters are advised to take the foreign language assessment exercise in the language in which they are most fluent first. Subsequently, when attempting to become certified in a second language they must take the foreign language assessment exercise for that language before taking the oral exam. Schedule B of these regulations discusses the content, passing requirements, and time allotted for the foreign language assessment exercise. Schedule C contains a list of languages for which full or abbreviated oral proficiency examinations exist.

 (b) Oral proficiency examination.—

 (1) Foreign language interpreters.—Interpreters who pass the written examination must next take an oral proficiency examination. The type and format of the proficiency examination depends on the language interpreted and whether there is a full or abbreviated proficiency examination available in that language. Interpreters who interpret more than one language must be certified in each language.

 (i) Languages for which there is a full or abbreviated oral proficiency examination.—Interpreters who interpret languages for which there is a full or abbreviated oral proficiency examination must take and pass all available parts in order to become certified. Where there is only an abbreviated examination, the interpreter must pass the available parts and agree to take the remaining parts when available in order to remain certified. Schedule C of these regulations details the contents of the full oral proficiency examination and provides lists of languages for which there is a full or abbreviated oral proficiency examination.

 (ii) Languages for which there is no oral proficiency examination.—To demonstrate linguistic proficiency, interpreters of languages for which there is no full or abbreviated oral performance examination must comply with one or more of the following requirements:

 (A) pass an oral proficiency interview in their foreign language in which the interpreter's foreign language skills are evaluated by expert raters during the course of a telephone based interview session. Details of the oral proficiency interview are contained in Schedule C of these regulations;

 (B) pass an oral English proficiency [interview and/or Test of English as Foreign Language (TOEFL)] exam such as the Versant Spoken English language test. When an interpreter's English language skills are deemed insufficient, he or she may be asked to take and pass an English proficiency interview at the superior level [and/or a TOEFL] at the discretion of the ICP; [or] and

 (C) agree to take a full or abbreviated test when available.

 (iii) Administration of oral proficiency examinations.—The oral proficiency examination must be taken and passed in the manner, and within the time periods, described in Schedule C of these regulations.

 (iv) Retaking the oral proficiency examination.—Interpreters who fail any portion of the oral proficiency examination may retake it in the manner described in Schedule C of these regulations.

 (2) Sign language interpreters.—After attending the orientation workshop and passing the multiple-choice part of the written exam, sign language interpreters must comply with the following requirements in lieu of an oral examination:

 (i) be certified by RID or NAD;

 (ii) provide proof of RID or NAD certifications (proof shall consist of a copy of the interpreter's certificates and a valid active membership card, or a letter from RID or NAD certifying the results of the proficiency examination and status); and

 (iii) hold a relevant RID or NAD certificate for legal interpretation as determined by the Court Administrator. A list of relevant RID or NAD certificates for legal interpretation can be found in Schedule C of these regulations.

§ 305. Criminal Background Check.

 All interpreters who have satisfactorily completed the oral proficiency requirements shall be subject to a criminal background check performed through the [Administrative Office of Pennsylvania Courts] AOPC. The following constitute grounds for failing the background check:

 (a) conviction of any type of felony or a misdemeanor involving fraud, dishonesty, corruption, moral turpitude, or false statements; or

 (b) any conviction related to [ethical violations and] the functions and duties of a court interpreter.

§ 306. Interpreter Classification.

 In general, there are two broad categories of interpreters: certified and otherwise qualified. For certification purposes, interpreters are divided into three groups: (1) those who interpret in a language for which a full or abbreviated oral proficiency examination exists; (2) those who interpret in a language for which there is no oral proficiency examination; and (3) sign language and deaf interpreters. The classifications and certification criteria are subject to modification, revision and change. Schedule D of these regulations contains tables detailing the current classification of the three certification groups.

Comment

 The classifications and certification criteria are subject to modification, revision and change based on developments such as the availability of new performance tests, the effectiveness or development of evaluation tools, reconsideration of the skill level represented by the various categories, and other related factors. Therefore, these classifications should not be viewed as definitive or permanent, especially for those in the otherwise qualified category.

§ 307. Interpreter Rules of Professional Conduct.

 All interpreters must sign a statement that they will abide by the Rules of Professional Conduct for Judiciary Interpreters.

Comment

 A copy of the Pennsylvania Rules of Professional Conduct for Judiciary Interpreters may be found in Schedule F of these regulations.

§ 308. Age Requirement.

 To be certified, an interpreter must be at least 18 years of age and agree to provide proof of age if requested by any court official or member of the ICP.

§ 309. Fees.

 Interpreters shall pay all fees required during the certification process and in the future for the renewal of their certification status, and any other fees imposed for the completion of any mandated program requirements. Fees will be waived for staff interpreters employed full time by any judicial district in Pennsylvania. Schedule E of these regulations contains a table of the current ICP fees.

§ 310. Renewal of Certification.

 All interpreters must renew their certification every two years, from the date the interpreter was placed on the roster, by doing all of the following:

 (a) Complete 16 continuing education (CE) units within the two-year compliance period. CE [credits] units may be obtained by: taking training or skill development workshops sponsored by institutes and professional organizations; taking academic courses in accredited colleges or universities in areas relevant to court interpreting; presenting as faculty in courses, workshops or seminars on topics related to interpreting such as skill building, ethics, and professional issues; or teaching an academic course in an accredited college or university on a subject related to courts, legal interpreting, or their language of expertise. All CE units must be approved in advance by the program administrator.

 (b) Be free of any revocation or suspension under § 402 [of these regulations] (relating to suspension or revocation of certification and roster status) or any similar sanction in any other jurisdiction.

 (c) Undergo a new criminal background check when applying for renewal. Interpreters who have been found guilty of a major felony or crime will be denied renewal of their credentials. Misdemeanor offenses will be evaluated on a case-by-case basis to determine if they constitute a violation of the Rules of Professional Conduct for Judiciary Interpreters.

 (d) Pay the renewal fee.

§ 311. Waiver and Reciprocity of Examination Requirements.

 (a) Interpreters certified in another [Consortium member] state that is a member of the National Center for State Courts' (NCSC) Language Access Services Section.—Any interpreter who has successfully completed all the requirements of the oral proficiency examination administered in accordance with the standards of [the Consortium for State Court Interpreter Certification in another Consortium] another NCSC Language Access Services Section member state may apply for reciprocity. The interpreter must have obtained a minimum of 70 percent of all parts of the oral proficiency examination and obtain a letter from the [State's] state's program manager certifying the results. These interpreters must also comply with all additional program requirements.

 (b) Interpreters holding Federal [or NAJIT certifications] certification.—Interpreters holding [either the] a valid Federal Court Interpreter credential [or the National Association of Judiciary Interpreters and Translators (NAJIT) certification] will be granted reciprocity under the same conditions explained above with regard to other [Consortium] NCSC Language Access Services Section member states. These interpreters must also comply with all additional program requirements.

Subchapter 4. DISCIPLINARY PROCEDURES

§ 401. Scope.

 These procedures apply only to interpreters who are included on the roster maintained by the [Interpreter Certification Program (ICP)] ICP. Staff interpreters who are employees of their respective judicial districts may also be subject to additional personnel and human resources policies in the districts where they are employed.

 These procedures apply to complaints about roster interpreters who have allegedly engaged in unethical or unprofessional conduct in the course of performing their interpreter duties and, in some instances, of unethical conduct outside the scope of interpreting.

Comment

 Separate and distinct from the procedures under this chapter is the Language Access Complaint Form, available on the Language Access & Interpreter Program page of the UJS website, http:/www.pacourts.us. Anyone can utilize the Language Access Complaint Form to make the court aware of other language access problems, such as where no interpreter is provided.

§ 402. Suspension or Revocation of Certification and Roster Status.

 The following shall constitute grounds for disciplinary action against interpreters registered with the ICP. Certified, otherwise qualified or registered status may be suspended or revoked for any of the following reasons:

 (a) violation of the Rules of Professional Conduct for Judiciary Interpreters;

 (b) conviction of a felony or misdemeanor involving moral turpitude, dishonesty, or false statements;

 (c) fraud, dishonesty, or corruption related to the functions and duties of a court interpreter;

 (d) knowing misrepresentation of court certification or roster status;

 (e) knowing and willful disclosure of confidential or privileged information obtained while serving in an official capacity as a court interpreter;

 (f) unprofessional or unethical conduct;

 (g) fraud or misrepresentation in obtaining or renewing certification status;

 (h) non-compliance with continuing education requirements;

 (i) non-payment of renewal fees; or

 (j) disciplinary action taken in conjunction with the interpreter's services in another jurisdiction.

§ 403. Reporting of Arrest or Discipline.

 An interpreter who is arrested in any jurisdiction or has been disciplined by the interpreter program of any other jurisdiction shall report the arrest or discipline to the ICP within forty-eight hours of the arrest or receiving notification of the discipline and shall provide, upon request of the ICP, any pertinent information related to the arrest or discipline.

§ 404. Disciplinary Procedures.

 (a) Lodging a complaint against an interpreter subject to these procedures.—A complaint must be submitted to the ICP in writing on a standard complaint form signed by the complainant. The complaint shall include a description of the alleged improper activity and the identity of any witnesses. Any person, including the ICP Administrator, may initiate a complaint.

 (b) Review of Complaint.—The ICP Administrator will review the complaint and determine whether the allegations, if true, constitute grounds for disciplinary action pursuant to § 402 [of these regulations] (relating to suspension or revocation of certification and roster status). If the ICP Administrator determines that the complaint does not allege conduct that constitutes grounds for discipline, the complaint shall be dismissed and both the complainant and the interpreter will be notified. If the ICP Administrator determines that sufficient grounds for discipline exist, a copy of the complaint will be sent to the interpreter.

 (c) Response.—Upon receipt of a copy of the complaint, the interpreter may submit a written response to the ICP Administrator within 20 days. Failure to respond will be deemed an admission of the violations alleged in the complaint. The ICP Administrator will then apply whatever sanctions are considered to be appropriate.

 (d) Investigation.—When the interpreter submits a timely response to the complaint, the ICP Administrator shall conduct an investigation. The ICP Administrator may contact the interpreter, the complainant and any other person deemed to have relevant information, and use any reasonable means necessary to ascertain the facts and investigate the allegations. The ICP Administrator may also meet with the parties in an attempt to resolve the matter informally. Such a resolution may or may not include sanctions as agreed to by the parties.

 (e) Determination.—If, at the conclusion of the investigation, the ICP Administrator determines that no conduct occurred that constitutes ground for discipline, the complaint shall be dismissed and both the complainant and the interpreter shall be notified. The notification shall include an explanation of the reason(s) for the ICP Administrator's determination.

 When, after an investigation, the ICP Administrator determines that a violation of the Rules of Professional Conduct for Judiciary Interpreters has occurred and that sufficient grounds exist to support the allegations in the complaint, the ICP Administrator will submit a report of the findings in writing to the complainant and the interpreter including which policies have been violated and whatever sanctions are considered to be appropriate.

 (f) Petition for review.—If the interpreter disagrees with the ICP Administrator's findings and proposed sanctions and wants to contest them, the interpreter shall submit a petition for review in writing to the Court Administrator within 20 days of receiving the ICP Administrator's report and proposed sanctions. The petition shall briefly state the facts that form the basis for the initial complaint and the interpreter's reasons for disagreeing with the ICP Administrator's findings or proposed sanctions. A copy of the petition shall be provided to the ICP Administrator. Failure to file a petition for review in a timely manner will be deemed an admission of the violations alleged in the complaint and the ICP Administrator will implement the recommended sanctions.

 (g) Hearing.—If the interpreter contests the findings of the ICP Administrator's report or disagrees with the recommended sanctions and submits a timely petition for review as provided in [§ 404(f)] subsection (f), the interpreter may request, and shall be given, a hearing before a hearing officer designated by the Court Administrator. A request for a hearing must be included in the petition for review.

 If the interpreter requests a hearing in a timely manner, the hearing shall be held within 60 days from the date on which the petition is received by the Court Administrator. The following conditions will apply at the hearing.

 (i) Legal representation.—The interpreter may be represented by counsel. The interpreter shall be responsible for all of his or her costs and expenses including attorney's fees.

 (ii) Pre-hearing discovery.—Pre-hearing discovery shall not be permitted unless expressly authorized by the hearing officer in response to a written request.

 (iii) Rules of evidence.—Strict rules of evidence shall not apply. The hearing officer may, in his or her discretion, consider any evidence presented, including affidavits, and give such evidence the weight he or she deems appropriate.

 (iv) Reporting of [hearings] hearing.—A record of the hearing shall be made.

 (v) Confidentiality.—Hearings shall be private and confidential, except upon request of the interpreter facing the allegations. Complainants, however, shall be entitled to attend the hearing.

 (vi) Hearing procedure.—At the hearing, both the ICP Administrator and the interpreter shall be afforded the opportunity to introduce documents and other relevant evidence and to elicit sworn testimony. The hearing officer may, at his or her discretion, call witnesses, and consider or clarify evidence presented, giving such evidence the weight he or she deems appropriate.

 (h) Decision.—Within 60 days after the hearing, the hearing officer shall advise the interpreter and the complainant via certified United States mail of his or her action on the complaint. If the hearing officer's action includes sanctions, the hearing officer shall specifically enumerate the sanctions[,] and the reason for such sanctions [and the interpreter's right to appeal]. If the sanctions include suspension or revocation of the interpreter's certification or roster status or placing the interpreter in a lower qualification or skill level on the roster, the hearing officer shall specify the conditions and timeframe within which the interpreter may apply for reinstatement of his or her prior certification or roster status and any conditions that must be met.

§ 405. Disciplinary Dispositions.

 (a) Burden of Proof.—If the hearing officer finds that there is clear and convincing evidence that the interpreter has violated the interpreter Rules of Professional Conduct for Judiciary Interpreters, or that there are any other grounds for discipline as stated in § 402 [of these regulations] (relating to suspension or revocation of certification and roster status), the hearing officer shall impose such discipline or sanctions as he or she may deem appropriate. In determining the type of sanction, the hearing officer shall consider the nature and seriousness of the violation, any pattern of improper activity, the effect of the improper activity on the court system and/or the complainant, the amount of experience of the interpreter, and any other mitigating or aggravating information presented.

 (b) Notification.—All decisions of the hearing officer shall be in writing and maintained on file with the ICP and, if adverse to the interpreter, shall contain factual findings supporting the decision. A copy of the decision shall be sent to the interpreter via certified United States Mail to the latest address listed with the ICP and by mail to the complainant.

 (c) Sanctions.—Sanctions may consist of, but are not limited to, one or more of the following:

 (i) issuing a private or public reprimand;

 (ii) requiring that specific remedial education courses be taken;

 (iii) requiring that one or more portions of the certification examination or the certification requirements be successfully taken or retaken;

 (iv) requiring that the interpreter's work be supervised;

 (v) limiting the scope of practice or services the interpreter can provide;

 (vi) placing the interpreter at a lower qualification or skill level on the roster;

 (vii) requiring restitution, costs, or expenses to be paid;

 (viii) suspension of certification and/or roster status for a period not to exceed one year; or

 (ix) revocation of certification or roster status.

§ 406. Reinstatement.

 An interpreter whose certification or roster status has been suspended for a period exceeding one year, or whose certification or roster status has been revoked, may not resume work in any area related to legal interpreting within the Unified Judicial System without first applying for reinstatement.

 (a) Time for filing application for reinstatement.—An interpreter whose certification or roster status has been revoked may not apply for reinstatement until the expiration of at least two years from the effective date of revocation of his or her certification or roster status, or any other specific [time frame] timeframe established by the revocation decision. An interpreter whose certification or roster status has been suspended may apply for reinstatement no earlier than ninety days before the end of the suspension period. An interpreter whose certification or roster status is suspended or revoked based on disciplinary action imposed by a foreign jurisdiction may apply for reinstatement at any earlier date on which reinstatement may be sought in the jurisdiction of initial discipline.

 (b) Form and content of the application for reinstatement.—The application for reinstatement shall be in writing and addressed to the ICP Administrator. The application shall explain why the interpreter believes that he or she should be reinstated and shall include proof of compliance with any conditions imposed as a condition for reinstatement.

 (c) Disposition of the application for reinstatement.—Within 60 days of receiving the application for reinstatement, and after reviewing and analyzing the merits of the case, the ICP Administrator shall make a recommendation to the Court Administrator on whether or not the interpreter should be reinstated. The recommendation should explain the basis for the recommendation. The decision to grant or deny such a request shall be at the sole discretion of the Court Administrator who can impose any additional conditions upon reinstatement as he or she may deem appropriate.

§ 407. Confidentiality.

 (a) When a disciplinary proceeding is either dismissed or results in a private reprimand, all records of the proceeding shall remain confidential unless otherwise provided for in this chapter. Otherwise, all such records shall become public whenever the decision becomes final.

 (b) Complaints submitted to the ICP Administrator shall be confidential unless they result in formal disciplinary action.

 (c) All communications to the Court Administrator, ICP Administrator, hearing officers, attorneys or counsel for the parties and staff, and all testimony given during a hearing pursuant to this disciplinary procedure relating to conduct for which an interpreter could be suspended, have his or her certification revoked or be otherwise disciplined, shall be privileged.

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