Mich. Admin. Code R. 393.5055

Current through Vol. 24-22, December 15, 2024

Section R. 393.5055 - VRI standards; usage, limitations, educational, legal, medical, mental health standards

Rule 55.

(1) A D/DB/HH person who in good faith asserts that VRI does not provide him or her with effective communication shall not be compelled or coerced to utilize VRI in place of an on-site interpreter. Good faith includes, but is not limited to, the assertion by a D/DB/HH person that similar equipment was ineffective in a previous experience, or that VRI technology does not result in effective communication because of his or her individual needs or abilities.

(2) A person using video remote interpreting to provide sign language interpreting services or translation services to D/HH person(s) for a proceeding in this state must be a qualified interpreter.

(3) A qualified interpreter may use VRI to interpret for a proceeding involving a D/HH person if effective communication is established and maintained at all times. VRI shall not be used to interpret for a minor without the express agreement of a parent or legal guardian indicating that doing so establishes effective communication, except that no parental consent or agreement to VRI is required in those medical situations where federal and/or state law or regulation provides that parental consent is not required for care.

(4) A person providing sign language interpreting services or translation services through video remote interpreting for a proceeding in this state shall not knowingly provide or attempt to provide VRI services to a person who is or is identified as being legally blind.

(5) An interpreter who believes that VRI is not providing effective communication shall immediately inform the D/HH person, the appointing authority, and parties involved in the conversation. The interpreter shall interpret on a temporary basis in a medical emergency pursuant to R 393.5029

(6) Notification by a D/HH person indicating that effective communication is not being achieved through the use of VRI shall cause an immediate halt of the proceedings. Proceedings shall not be resumed using VRI unless effective communication is achieved. VRI may be used on a temporary basis in a medical emergency pursuant to R 393.5029.

(7) A person providing sign language interpreting services or translation services to D/HH person(s) through video remote interpreting for a proceeding in this state shall provide evidence of training in videoconferencing protocols, training in the proper use of equipment, technical set-up, lighting, connectivity, and camera adjustments on a supplemental form provided by the division.

(8) To constitute effective communication and therefore permit the participation of qualified interpreters, VRI shall at a minimum include all of the following:

(a) Real-time, full-motion video and audio over a dedicated high-speed, T-1 or wider bandwidth video connection.

(b) High-quality video images without lags, choppy, blurry, or grainy images, or irregular pauses in communication.

(c) A sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating person's face, arms, hands, and fingers, regardless of his or her body position.

(d) A clear, audible transmission of voices.

(e) Adequate training to users of the technology and other involved persons so that they may quickly and efficiently set up and operate the VRI.

(9) To ensure privacy, a video remote interpreter shall only participate in VRI conducted from a dedicated and secure call center. A secure call center must be all of the following:

(a) Situated in a private location where a person may reasonably expect to be free from casual or hostile intrusion, surveillance, and eavesdropping.

(b) Include 1 or more dedicated and separate rooms where video remote interpreters, supervisors, and others necessary to conduct the interpreting process and/or maintain the necessary video connection are permitted to be present while any interpreting is being provided. The suite or room shall have a solid core exterior door or doors that are locked during interpreting. Only persons performing or supporting the task of interpreting or supervising interpreters shall have keys or access to the room or suite.

(c) Video remote interpreting shall only be done from dedicated computers and equipment used only for the purpose of video remote interpreting.

(d) A video remote interpreter or call center providing medical interpreting must enter into HIPAA compliant business associate agreements with appointing authorities as required by omnibus regulations. Copies of the agreements shall be submitted to DODHH with an application to provide video remote interpreting and/or provided upon request of the DODHH.

(10) To ensure the quality and continuity of interpreting services required to constitute effective communications when VRI is used, an appointing authority shall ensure, and a video remote interpreter shall not participate unless all of the following are satisfied:

(a) All VRI is conducted from a dedicated and secure call center.

(b) A qualified interpreter shall not transfer a medical call to a different call center when interpreting for a single proceeding with a D/HH patient.

(c) To the greatest extent possible, qualified interpreters and appointing authorities shall provide continuity of interpreters by minimizing the number of call centers and/or interpreters who work with a single D/HH patient during multiple proceedings related to the course of an inpatient stay or the treatment of a single ailment.

(d) A qualified interpreter and appointing authority shall require a superuser to be on each site at all times before proceeding with VRI .

(11) An interpreter in an educational setting using VRI shall comply with all educational interpreter standards and with both of the following:

(a) A qualified interpreter shall not interpret for a proceeding using VRI for any D/HH child from birth through grade 5. VRI may be used for children 6th grade or above.

(b) The parents or legal guardians, IEP, or 504 team and the D/HH student shall all participate in the final determination of whether effective communication is achieved for a student using VRI services during parent meetings and for any child in a secondary educational setting.

(12) An interpreter in a medical or legal setting using VRI shall comply with all medical and legal interpreter standards as required under R 393.5028.

(13) Where an interpreter is requested as an accommodation more than 24 hours in advance of a medical appointment, an appointing authority must advise a D/DB/HH person of a desire to utilize VRI prior to the time of the appointment and must provide the D/DB/HH person with an opportunity to offer any good faith basis for believing VRI does not provide him or her with effective communication

(a) An existing patient who is seen on a regular basis should be informed of the intent to begin utilizing VRI for future appointments during an appointment where an interpreter is present.

(b) A patient, existing or referred, known to be a D/HH person who has previously been provided an interpreter, should be informed of the desire to begin utilizing VRI at the time a new appointment is made.

(c) When VRI is the most frequent method of interpretation provided employed by a doctor, medical office, or hospital, a person requesting an interpreter shall be informed that VRI is likely to be utilized at the time the accommodation request is received.

(d) When VRI is utilized by a doctor, medical office, or hospital on a regular though less frequent basis, a person requesting an interpreter shall be informed that VRI may potentially be utilized at the time the accommodation request is received.

(e) In all other instances a person requesting an interpreter as an accommodation shall be informed of the intent to utilize VRI as soon as the desire not to provide an interpreter on site becomes known.

(14) Unless there is informed consent of the D/HH person, VRI shall not be used in any of the following medical situations:

(a) Initial meetings with a medical specialist.

(b) Highly sensitive communications, for example, diagnosis of a serious illness.

(c) Eye exams.

(d) Patient transport.

(e) With a D/HH person with a cognitive limitation.

(f) With a D//HH person with a secondary disability or condition that makes it difficult to use VRI or to view the VRI screen, for example, low vision.

(g) With a D/HH person with an injury or illness that impedes his or her ability to view the screen.

(h) With a D/HH person who indicates by sign or facial expression that communication is not being achieved.

(i) When consistent and continuous communication cannot be achieved due to equipment failure or poor connectivity.

(j) During surgery, under the influence of consciousness altering drugs or medication, childbirth, or end-of-life event.

(15) Unless the D/HH person states in writing or on record at a court or administrative tribunal that effective communication is being achieved, it will be assumed that effective communication cannot be achieved through the use of VRI services in any of the following legal and mental health circumstances and it shall not be used:

(a) Trials.

(b) Contested hearings.

(c) Guilty pleas.

(d) Mental health treatment in group settings, commitment evaluations and, hearing proceedings. A D/HH person who is unable to differentiate reality from delusions, whose competency is under question, and/or who is under the age of legal consent is not considered competent to consent to the use of VRI

(e) Polygraph examinations.

(f) Witness testimony.

(g) Depositions.

(h) Preliminary hearings.

(i) Evidentiary hearings.

(j) Ex parte domestic proceedings.

(k) Cases with multiple deaf participants.

(l) Cases with prose deaf participants.

(16) When utilizing VRI services, the D/HH person shall have access to the equipment at all times when communication is taking place and its usage shall not be restricted. The D/HH person shall retain the ability to be reconnected to VRI whenever the need for communication arises.

(17) When utilizing VRI, if there are 3 failed connectivity attempts, shutdowns, and/or unexpected equipment disconnects in a proceeding, a video remote interpreter in a medical setting shall report to the appointing authority that he or she cannot provide effective communication due to equipment failure. The video remote interpreter shall withdraw from the assignment, and an onsite interpreter shall be requested for the remainder of the proceeding and until the equipment failure is resolved.

(18) A D/HH person may file a complaint for failure to provide reasonable and effective communication against an appointing authority that does not comply with United States Department of Justice VRI standards and continues to have connectivity issues. The D/HH person may also file a complaint against the video remote interpreter who does not comply with subrule (15) of this rule by withdrawing from the assignment.

(19) Qualified interpreters meeting all level 3 interpreter standards may interpret for a proceeding using VRI, except for situations under subrule (14) of this rule. Effective communication is required to be achieved.

Mich. Admin. Code R. 393.5055

2014 AACS