An update to the California workers' compensation copy service fee schedule has been under DWC consideration for several years.
Copy service fees have long been a bone of contention in the system.
A 2013 study of copy service fees prepared by the Berkeley Research group for the California Department of Industrial Relations (see link below) made extensive recommendations. BRG noted acrimony in the system over copy service services and costs. They recommended a set single price for copying records up to 1,000 pages, and a payment amount for additional copy sets and electronic records. To deal with problems collecting on copy bills, a tiered pricing system was recommended.
And to deal with alleged abuse, BRG recommended copy services be registered and that attorneys be required to support subpoenas with a declaration that the subpoena was issued in good faith, not duplicative and issued to seek necessary documents.
But the copy service fee schedule adopted by the DWC in 2015 failed to follow the BRG recommendations. Instead, copy services contended that they had sustained up to a 40% cut.
Most everyone recognizes that there needs to be an adjustment, but how?
In addition to an adjustment of copy service fees, should there be structural changes to the discovery process and the way workers' comp subpoenaed records are handled?
There are some in the payor community (i.e.employers and insurers) who would like to move toward other record gathering and retention technologies and platforms. They believe that the current system is inefficient and duplicative. They have a reasonable concern that reviews of duplicate record sets will drive up the costs of med-legal evals if a new QME incorporates per page record reviews at $3 per page.
They prefer a system that sets up a centralized records repository viewable by all of the parties to the case, from the applicant and defendant to the treaters, QMEs/AMEs and judges. I've discussed this with some prominent payor consultants, and had a brief introduction to a couple of those platforms, including Arcuity. Some make extensive use of AI and machine learning in sorting (but not destroying) duplicate records.
Although I was impressed, there are many questions and concerns that would need to be studied.
Workers and their advocates need to be sure that any changes in the system preserve the right to discovery. There needs to be great transparency. And there needs to be an understanding that records received from a source may not always be the same, since the information requested in a subpoena may be worded in different ways. Determining when duplicate orders of records is wasteful and when it may be reasonable can be a tricky thing.
So while there may be promising records platform alternatives being developed that are worthy of study, the DWC should move forward on copy service fees now.
Doing so has been fraught, however.
In July 2019 DWC posted proposed amended copy service regulations (see link below), and there was an August 2019 forum on the proposal (see link below). Afterwards there were various stakeholder discussions with DWC, and the DWC unveiled another proposal in September 2020 (see link below) followed by yet another stakeholder forum in October 2020 (see link below).
The California Applicants Attorneys Association commented on October 8, 2020.
But as of the end of February 2021, formal rulemaking has not begun.
Based on conversations with DWC officials, many stakeholders believe that DWC rule making will begin soon. But reported testimony at the recent California Senate confirmation hearing of acting DIR Director Katrina Hagen seemed to indicate that the DWC might be looking to gather a CHSWC study on the issue, so it is not clear what approach the DWC will take. Hagen is speaking at the CHSWC virtual meeting on March 4, 2021, so we will likely learn more then.
On January 25, 2021, the Coalition of Professional Photocopiers (CPP) forwarded proposed fee schedule amendments to George Parisotto, Administrative Director of the DWC (see link below). The proposal aims to fulfill three objectives: 1) reduce fraud; 2) manage expenses and fees; and 3) preserve the rights of injured workers.
The CPP proposal is supported through a December 31, 2020 analysis prepared by Mark Priven of Bickmore Actuarial (see link below). Priven argues that even if copy service fees are increased from a flat fee of $180 per record to $250 per record, measures required under the CPP proposal would eliminate QME review of duplicative, blank and irrelevant pages. Priven's report lays out a scenario for how this would result in savings (assuming a new QME fee schedule is adopted that pays QMEs on a per page record review basis).
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