Washington Proposed Rule-Making for Third Party Recording: Additional Red Tape in an Already Onerous System?
Since the implementation of new rules allowing claimants to record examinations requested by the Department or Self-Insurer in 2023 employers have encountered increased difficulty in obtaining an independent medical examination (IMEs). Many providers expressed concerns about the unpredictable nature of claimants’ use of the recordings, and are not assuaged by the admonishment in RCW 51.36.070 (g) which prohibits a claimant from posting a recording to social media without clear repercussions. This, combined with a notice window up to seven days prior to the examination for claimant’s intent to record under RCW 51.36.070 (4)(b), has resulted in a numerous issues including rescheduling fees, delayed exams, and limited provider options.
IME companies have developed protections for their providers by offering a “co-recording” option in which the worker consents to recording of the IME by a third party, such as the IME company or a court reporter, and the IME proceeds with both parties developing a recording of the examination to allow claimants the opportunity to record while protecting providers from altered recordings. Additionally, it allows third party administrators the opportunity to request claimants’ consent to co-recording and avoid cancelation shortly before the exam. Now the Department of Labor & Industries has proposed potential administrative rules governing the process of third-party IME recordings.
The Proposal Statement of Inquiry cites claimant and claimant advocate concerns about a third party’s possession of a recording and chain of custody for recordings. It states that the rules will establish standards for the use of the third-party company to conduct and store recordings under these circumstances. This could add to the expense of obtaining an IME as it may require additional supervision and space within the IME company, and may reduce the amount of co-recording options available if the rules require detailed measures to ensure compliance.
The Department has elected to utilize the pilot rule making program which utilizes volunteer pilot groups in various areas and circumstances to test the feasibility of complying or administering the new draft rules. The outcome of this pilot program will affect the ultimate impact on employers.
If you have any questions about obtaining an IME, factors influencing co-recording or the state of the proposed rules, you can contact me at or (503) 595-6103.
Posted by Madeline Mahugh.
