Hawaii-2018-HB1107-Introduced

SECTION 1. The legislature finds that with the passage of the Americans with Disabilities Act of 1990 (ADA), Public Law 100-336, as amended, the demand for American Sign Language English interpreters greatly increased, as many public and private organizations did not provide qualified interpreters when requested before the passage of the ADA, as amended. The ADA, as amended, defines a qualified interpreter as one who is able to interpret effectively, accurately, and impartially.

The legislature finds that once an American Sign Language English interpreter establishes a business in Hawaii, the interpreter may use an interpreter referral agency to obtain assignments, similar to the way a person who is unemployed uses a temporary employment agency to find temporary work. In interpreter referral situations, the interpreter is an independent contractor. Businesses and agencies seeking to hire an interpreter may also decide to use an interpreter referral agency for convenience and time saving instead of contacting interpreters directly.

There is currently no regulation of American Sign Language English interpreter referral agencies. The disability and communication access board is aware of three `interpreter referral agencies that are based and operate in the state. In addition, there are other world language interpreter referral services in Hawaii that are now referring American Sign Language English interpreters for assignments.

The legislature finds that there are interpreter referral agencies based on the mainland that also refer American Sign Language English interpreters for assignments in Hawaii. These mainland-based companies may or may not be knowledgeable of some of the local language needs of Hawaii-based assignments. With only consumer and interpreter concerns raised about the practices of interpreter referral agencies, there is no way to monitor how American Sign Language English interpreters are contacted or placed on assignments.

Consumers and interpreters have raised concerns about the practices of interpreter referral agencies. Their concerns include the following:

(1) Whether a deaf, hard of hearing, or deaf-blind consumer's preferred/requested interpreter is contacted first;

(2) Whether a hierarchical order is used to contact interpreters with higher level credentials;

(3) Whether an interpreter who accepts an assignment is the most qualified;

(4) Whether the information related to the assignment is complete and accurate enough for the interpreter to make an informed decision about accepting or declining an assignment;

(5) Whether a referral fee is commensurate with the credential level of an interpreter selected for an assignment; and

(6) Whether a grievance or complaint procedure with sanctions should be established to address and correct violations of the right of consumers to have the most qualified interpreter provide effective communication for an assignment.

The purpose of this Act is to protect consumers of American Sign Language English interpreter services by regulating agencies that place interpreters on assignments in the state.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

AMERICAN SIGN LANGUAGE ENGLISH INTERPRETER REFERRAL AGENCIES

§ -1 Definitions. For the purposes of this chapter:

"Consumer" means a hearing, deaf, hard of hearing, deaf-blind or speech-disabled person; or a person or an entity requiring the use of interpreter services to effectively communicate and comprehend signed, written, and/or speech discourse.

"Department" means the department of _______________.

"Director" means the director of _______________.

"Interpreting" means the process of providing effective communication between and among persons who are deaf, hard of hearing or deaf-blind, and those who can hear. The process includes, but is not limited to, communication between American Sign Language or other forms of manual communication and English. The process may also involve various other modalities that involve visual, gestural and tactile methods.

"Interpreter" means a professional who holds a nationally recognized certification or state recognized credential as such; using a source language message and, after working through a complex physical and mental process, expresses an equivalent message into the target language, maintaining essential elements of meaning and intent.

"Interpreter referral agency" means any organization that arranges, contracts with or employs interpreters to provide interpreting services for a third party, including on-site or video remote interpreting.

"Nationally recognized certification" means a certification or professional credential awarded to an individual who successfully completes an evaluation of interpreting skills at a professional level. The term includes a credential issued, recognized, or both by the registry of interpreters for the deaf, national association of the deaf or educational interpreter performance assessment.

"Principal" means a corporate officer or director, a partner in a partnership, a sole proprietor, or an individual with an ownership interest in the interpreter referral agency who shall be a signatory of any account of the interpreter referral agency.

"State recognized credential" means a credential awarded by the state disability and communication access board to an individual who successfully completes an evaluation of interpreting skills at a professional level.

§ -2 Registration required. (a) The interpreter referral agency shall register with the director prior to engaging in the business of selling, contracting for, arranging, or advertising that it can or will arrange, interpreting services which are rendered by a nationally certified or state credentialed interpreter. Notwithstanding section -7, any interpreter referral agency that violates the provisions of this section or rules promulgated pursuant thereto shall be fined a sum of $100 for each day the interpreter referral service is in violation. The sum shall be collected in a civil suit brought by the department.

(b) Registration shall expire on December 31 of each odd-numbered year. Before December 31 of each odd-numbered year, the director or the director's authorized delegate shall mail a renewal application for registration to the address on record of the registrant.

(c) The director by rule, shall establish fees and requirements for registration, maintenance of registration, renewal, restoration of registration, of interpreter referral agencies.

§ -3 Interpreter referral agency principal; responsibilities. (a) Each interpreter referral agency shall designate a principal who shall have direct management and supervision of the interpreter referral agency.

(b) The interpreter referral agency shall designate the interpreter referral agency's principal with each registration and registration renewal and shall provide notification in writing to the department within ten days after any change in the designation of the interpreter referral agency principal.

§ -3 Prohibited acts. No interpreter referral agency shall engage in any of the following practices:

(1) Referring an interpreter who does not hold a national recognized certification or state recognized credential to an interpreting assignment;

(2) Failing to notify the requesting agency, within twenty-four hours of the assignment, of the interpreter who has been selected for a specific assignment;

(3) Failing to possess a current and valid registration prior to engaging in business or advertising as an interpreter referral agency;

(4) Failing to keep all information related to the assignment, including the name(s) of the deaf, hard of hearing, deaf-blind, or hearing consumer confidential; or

(5) Failing to obtain an agreement for full payment for an interpreting assignment prior to or at the time the interpreting assignment is booked or placed with the interpreter or within three business days thereafter, except where the reservation specifically provides for direct payment of the amounts owed to the interpreter at the time of the assignment.

§ -4 Payment provisions. Unless the express written contract has a provision to the contrary, payment shall be due and payable thirty days from the date of invoice.

§ -5 Legal rate; computation. Except as otherwise permitted by existing written contract, any interpreter referral agency that directly or indirectly receives any interest on the payment due to the interpreter, shall remit the interest and the payment due to the interpreter; provided that if the interest and payment due are not remitted within thirty days from the date of invoice, interest on the unpaid balance of the interest and payment due shall accrue at the rate of one per cent per month from the due date.

§ -6 Injunctive relief; suits. (a) Any interpreter referral agency may bring suit to enjoin any violation of this chapter and may sue in the circuit court in the circuit in which the defendant resides or has an agent or in which the violation has occurred.

(b) Any interpreter referral agency may bring suit to enjoin any violation of this chapter and may sue in the circuit court in the circuit in which the defendant resides or has an agent or in which the violation has occurred. The relief available to an interpreter shall be limited to injunctive and declarative relief and shall not include a right to damages.

(c) The prevailing party, in a civil action brought under this chapter, shall be entitled to recover the costs of the suit, including reasonable attorney's fees.

§ 7- Action for damages. Any interpreter referral agency shall be liable to the interpreter for a violation of this chapter for any damages, which result from a violation. Damages shall be awarded at the rate of no less than $500 for each violation. Violations shall be calculated as follows:

(1) For violations of section -3(1), (2), or (3), by multiplying the number of days the violations occurred by the interpreter referral agency where the violations occurred;

(2) Notwithstanding paragraphs (1) and (2), not more than $1,000 shall be awarded if the interpreter referral agency has not previously been required to pay damages to an interpreter pursuant to this section.

§ -8 Requirements for offering discounts. When a discount offered for any assignment, it is contingent upon any requirement that any recipient of the discount, the interpreter referral agency shall disclose the requirement in writing to the recipient of the discount before payment is made. Failure to do so shall constitute a false and deceptive business practice subject to a civil fine of $1,000 per day for each occurrence.

§ -9 Violations; fraud. Any violations by an interpreter referral agency of any law shall constitute a prima facie showing of fraud on the part of the interpreter referral agency and may not be dischargeable as a debt to a consumer or an interpreter in any bankruptcy proceeding.

§ -10 Restitution. Any person who engages in an act or practice that violates any provision of this chapter or rules adopted pursuant hereto may be ordered by a court of proper jurisdiction to make restitution to all persons injured by the act or practice.

§ -11 Injunctions. In any civil proceeding brought pursuant to this chapter, the court may also enjoin any activity that violates this chapter.

§ -12 Consumer right of action. Any person who suffers damage as a result of a violation of this chapter shall be entitled to injunctive relief restraining further violations, and may sue to recover damages in any circuit court of the State, and, if successful, shall recover three times the actual damages or $1,000, whichever is greater. In any action brought under this chapter, the prevailing party shall be entitled to the recovery of costs of suit, including reasonable attorney's fees.

§ -13 Remedies cumulative. Unless otherwise expressly provided, the remedies or penalties provided by this chapter are cumulative to each other and to remedies or penalties available under other laws of this State.

§ -14 Criminal penalties. A person commits the criminal offense of theft if the person, being an interpreter referral agency, knowingly or intentionally violates this chapter.

§ -15 Rules. Subject to chapter 91, the director may adopt such rules as the director deems necessary for the effective administration and enforcement of this chapter."

Section 3. This Act takes effect on July 1, 2018.

INTRODUCED BY:

_____________________________

BY REQUEST

HOUSE OF REPRESENTATIVES	H.B. NO.	1107
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII