Proposed CA Copy Rules Nonsensical

You already know how I believe that California workers' compensation is so sensationally micro-managed with complex regulations that the attempts at generating savings ends up costing more. I think this is what the proposed copy service fee schedule regulations are about to accomplish.

Here are the issues:

Define "Authorization"

The Statement of Reasons for proposed regulation section 9980 states, “It is necessary to define each of the key terms used in the copy service fee schedule to ensure that their content and meaning are clearly understood by the workers compensation community.”

The word “authorization” is used several times in the series of new regulation sections, yet there is no definition of “authorization” in regulation section 9980 (Title 8, California Code of Regulations), or anywhere else for this important term. If a term is going to be used in several different places for different purposes there should be a definition unless there is a clear and unambiguous general meaning.

In the case of these proposed regulations there is no clear, unambiguous meaning of "authorization" because of the contexts in which the term is used.

What California Code, Regulation or authority is referred to when the regulations speak to using an “authorization”? While many copy services depend upon Evidence Code 1158 for the use of an “authorization,” that Evidence Code section clearly does NOT apply once the Application for Adjudication has been served and a case number assigned, or the defendant has appeared on the case: "Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law or his or her representative presents a written authorization therefor..." [emphasis added].

In other words, the term "authorization" as defined by Evidence Code section 1158 doesn’t apply to the very situations described in the proposed fee schedule.

That’s a problem… and the DWC has no authority to change the Evidence Code or incorporate any other Codes other than the Labor Code into its regulatory references, and even then only with whatever express authority that is contained in the Labor Code. This not nit picking. Rather than provide “clarity,” I see this and other parts of these proposed regulations creating entirely NEW copy service disputes and friction within the system (ergo more costs).

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The Declaration of Completion

Section 9981(b)(2) -  Bills for records obtained by the so called “authorization” must include a declaration of completion of records pursuant to section 9984(a)… And 9984(a) requires SOMEBODY (otherwise completely unidentified) sign an affidavit under penalty of perjury itemizing in detail all the records produced, etc.

So, who is to sign this affidavit, the COPY SERVICE? Because if it’s the Custodian of Records, what authority will the copy service have to COMPEL the Custodian to sign such a thing? Again, what is the authority for the “authorization” in the first place? What Code or Regulation is the DWC referring to so that copy services can OBTAIN this CRITICAL document from WHOEVER should sign it, and that MUST BE attached to the copy service Bill for services? The copy service can’t sign such a declaration because they aren’t PRODUCING any records – they are only COPYING the records. 

Consequently the bill from the copy service is apparently INVALID and not subject to payment if the copy service was naïve enough to use an “authorization” - as described in this regulation - to obtain the records, and was not able to convince the custodian to sign one of these declarations.

Record custodians are NOT going to sign a Declaration attesting to records produced by a signed authorization. They don’t have to, and they know it.

Curiously though, the proposed regulations fail to require the defense to certify the records they produce to the applicant. 

Billing Codes

I can't make sense out of the 9981(b) - Billing Codes. I don't know what HCPHCS level 2 codes are. I went to "findacode.com" to look these up - I don't see anything there about copy services. Maybe "temporary codes," but even that doesn't make sense. Listen, I was an English major in college, and yeah I have an MBA so I can read a balance sheet, but I guess I just don't understand billing code nomenclature and process application.

There are charges listed in Regulation 9983 in subsections: (1), (2), (4)(a), (4)(B), (4)(C) and (4)(D). How would the three (or is it just two?) Billing Codes listed in 9981(b) be applied to the various approved charges in 9983? The Statement of Reasons for the regulations said the Regulations were to simplify the copying industry, and reduce dispute. Then why start with an unintelligible Billing Code section and require compliance on every copy service bill?

Allowable Services

Section 9982 (a) through (d) describe several situations where services are “allowable,” but does this mean services are allowed if ANY of these situations arise, or only if ALL of the situations arise?

That’s important - is the copy service “all clear” if no records were produced under regulation 10608 within 10 days (plus mailing time), or must the copy service ALSO wait for 30 MORE days? This is not giving me “clarity”… Especially since (b), (c) and (d) are situations where services are allowed, but (a), (e) and (f) are situations where services are NOT covered by the fee schedule, or are NOT allowed. 

And, nobody OTHER THAN A PROFESSIONAL PHOTOCOPIER would have authority to “produce” or “serve” records on the applicant under 9982 when the “request” is made via a form or document that is clearly titled “Authorization and Request to Produce Records Under Labor Code Section 5307.9 and Regulation 9982(c).”

In other words, if the applicant makes their request to be served with records that are in the “Claims Administrator’s” possession, as required by Labor Code 5307.9 and these regulations, with something called an “authorization,” it would FORCE the Claims Administrator to produce the AFFIDAVIT or DECLARATION under Section 9984(a).

At least I would assume the California Applicant's Attorney Association will interpret it this way, or something similar, because they want some sort of ASSURANCE that all the records were served - and not tampered with.

I've written before that mistrust is what drives workers' compensation - so let's create more mistrust, more procedural litigation, more cost and expense that was supposed to be controlled by this fee schedule...

139.32 Declaration

My last rant: I like the declaration about not violating LC 139.32, but nobody has a clue how that code section is to be interpreted relative to copy services, so that requirement doesn't seem like it's worth anything but another dispute driver. DWC should provide some clarity as to how LC 139.32 must be complied with (by copy services) in this regulation if we are to cleanup the copy service industry. 

The copy service fee schedule has been a long time coming since SB 863 passed in 2012 and most of the debate has been what the actual fees were going to be. I think most of the debate needs to be how to make this work without unduly burdening the entire system with more nonsensical detail that doesn't get to the heart of what the underlying issue was - a level playing field for copy services and reduction of friction in the system.

The DWC will hold a public hearing on the proposed rules on July 1 at 10 a.m. at the Elihu Harris state office building, 1515 Clay St., in Oakland. Written comments will be accepted until 5 p.m. on that day.