AN ACT Relating to facilitating the use of a department of labor and industries-approved, application-based, third-party recording platform to record independent medical exams; reenacting and amending RCW 51.36.070; and providing an effective date.

(1)(a) Whenever the department or the self-insurer deems it necessary in order to (i) make a decision regarding claim allowance or reopening, (ii) resolve a new medical issue, an appeal, or case progress, or (iii) evaluate the worker's permanent disability or work restriction, a worker shall submit to examination by a physician or physicians selected by the department, with the rendition of a report to the person ordering the examination, the attending provider, and the injured worker.

(b) The examination must be at a place reasonably convenient to the injured worker, or alternatively utilize telemedicine if the department determines telemedicine is appropriate for the examination. For purposes of this subsection, "reasonably convenient" means at a place where residents in the injured worker's community would normally travel to seek medical care for the same specialty as the examiner. The department must address in rule how to accommodate the injured worker if no approved medical examiner in the specialty needed is available in that community.

(2) The department or self-insurer shall provide the physician performing an examination with all relevant medical records from the worker's claim file. The director, in his or her discretion, may charge the cost of such examination or examinations to the self-insurer or to the medical aid fund as the case may be. The cost of said examination shall include payment to the worker of reasonable expenses connected therewith.

(3) For purposes of this section, "examination" means a physical or mental examination by a medical care provider licensed to practice medicine, osteopathy, podiatry, chiropractic, dentistry, or psychiatry at the request of the department or self-insured employer.

(4)(a) ((The worker has the right to record the audio, video, or both, of all examinations ordered under this section, RCW 51.32.110, or by the board of industrial insurance appeals.))An injured worker has the right to record the audio, the video, or both, of all examinations authorized under this section, RCW 51.32.110, or by the board of industrial insurance appeals. Any recording must be conducted exclusively through a department-approved, application-based, third‑party recording platform as provided in (c) of this subsection. Independent recording by any person is prohibited.

(b) ((The worker or the worker's representative must provide notice to the entity scheduling the examination that the examination will be recorded no less than seven calendar days before the date of the examination. The department must adopt rules to define the notification process.))The worker or the worker's representative must provide notice to the entity scheduling the examination that the examination will be audio, video, or audio and video recorded no less than seven calendar days before the date of the examination.

(c) ((The worker is responsible for paying the costs of recording.))The department-approved, application-based, third‑party recording platform must be used for all video, audio, or audio and video recordings of examinations under this section. The platform must allow either the worker or, at the request of the worker, the examining provider to initiate the recording; ensure accurate, continuous video and audio capture; operate without interfering with the examination; and automatically upload the video to the third-party recording vendor's secure digital storage system.

(d) ((Upon request, the worker must provide one copy of the recording to the department or self-insured employer within 14 days of receiving the request, but in no case prior to the issuance of a written report of the examination.))All recordings made under this subsection must be stored only on the secure digital server of the third-party recording vendor. No worker, worker's representative, self-insurer, or medical provider may retain, download, duplicate, or store a local copy of a video recording, except as authorized by rule.

(e) ((The worker must take reasonable steps to ensure the recording equipment does not interfere with the examination. The worker may not hold the recording equipment while the examination is occurring.))Recordings made under this subsection are confidential and not open to public inspection as provided under RCW 51.28.070 and may not be released, except in accordance with rules adopted by the department.

(f) ((The worker may not materially alter the recording. Benefits received as a result of any material alteration of the recording by the worker or done on the worker's behalf may be subject to repayment pursuant to RCW 51.32.240.))Upon request by the injured worker, the worker's representative, the self‑insurer, employer, the employer's representative, a medical provider involved in the claim, or the examining provider, the third-party recording vendor shall provide secure access to the recording in accordance with rules adopted by the department.

(g) ((The worker may not post the recording to social media.))No person may alter, duplicate, privately store, distribute, or publicly post in any manner, or to any platform any recording made under this subsection (4). A violation of this subsection (4) by the worker or done on the worker's behalf may constitute grounds for repayment and penalties under RCW 51.32.240. Any person who violates this subsection is subject to a civil penalty of $1,000.

(h) ((Recordings made under this subsection are deemed confidential pursuant to RCW 51.28.070.))The costs associated with the recording platform and retention of recordings must be treated as part of the costs of the claim.

(i) The worker has the right to have one person((, who is at least the age of majority and who is)) of the worker's choosing((,)) to be present to observe all examinations ordered under this section, RCW 51.32.110, or by the board of industrial insurance appeals. The observer must be ((unobtrusive and not))at least 18 years of age and may not obstruct or interfere with the examination. The observer may not be the worker's legal representative, an employee of the legal representative, the worker's attending provider, or an employee of the worker's attending provider.

(j) The third-party recording vendor shall ensure that the recording platform meets minimum cybersecurity standards including encryption, multifactor authentication, and state information technology requirements.

(k) Any recordings must be retained on the third-party recording vendor's platform for the life of the claim and no fewer than 10 years after final closure or litigation. The department shall adopt rules for storage, transfers, and protection of the recordings in the event of a change in third-party recording vendor.