FSCO Releases Bring Great Relief to Accident Benefits Industry
On April 11, 2018, the Financial Services Commission of Ontario (FSCO) released a revised Attendant Care Hourly Rate Guideline and a clarification as related to the Professional Services Fee Guideline. These releases bring great relief to the accident benefits industry at large.
The revised Attendant Care Hourly Rate Guideline delivers a welcome clarification with respect to the obligation of insurance companies to pay attendant care benefits. It is Section 19(2) of the Statutory Accident Benefits Schedule that directs insurers on how to calculate the amount of monthly attendant care benefit for our clients. The Section describes that the entitlement is to be calculated by taking the number of hours for each service and multiplying them by the rate set out in the Guideline. It is through the multiplication of hours of care and rates for service, that we arrive at the overall monthly attendant care benefit entitlement.
We have recently seen much dispute arise in the industry given the wording of the previous Attendant Care Hourly Rate Guideline and the related Licence Appeal Tribunal decision of 16-001063, A.H. and Belair Insurance Company. The interpretation of these publications was such that insurers became no longer obligated to simply pay the monthly attendant care benefit entitlement, but instead able to just pay for services based on the hours and hourly rate per level of care. It is easily recognizable that these rates, as currently being $14.90 per hour, $14.00 per hour, and $21.11 per hour for each of the relevant care levels, fall far below market rates for professional care.
As we began to witness insurers impose the hourly rates for service, we quickly saw our clients thrust into crisis. Vendors struggled to provide invoices with enough detail to tease out the level one, two, and three services and disputes over invoices became an increasingly frequent occurrence. More disturbing though, was the impact upon injured people in that they became unable to access care given the short-fall between the hourly rates paid by insurers and the average market rates billed by professional providers. In some cases, those who were in the most desperate need of care were left without support.
With the release of the revised Attendant Care Hourly Rate bulletin, FSCO has clarified that the hourly rates are only the tools used in the calculation of monthly attendant care entitlement. The Guideline expressly confirms that once the insurer has given notice of the approved monthly entitlement rate, insurers “shall use the resulting monthly attendant care benefit amount to pay the benefit”. With this clarification, we expect insurers will no longer make effort to, let alone succeed at, reducing payment for care to the hourly rates. Likewise, it would be our expectation that insurers should no longer impose requirement for highly detailed invoices to describe the levels of care provided to injured parties.
In other good news, and as mentioned above, FSCO has also released clarification with respect to the intention of the Professional Services Fee Guideline. This clarification is in response to the outcry of case managers, and the industry at large, as arising following the License Appeal Decision of 16-003478, J.A. and The Co-operators General Insurance Company.
In his decision, Adjudicator Ian Maedel interpreted the SABS and the Professional Services Fee Guideline as directing that “qualified case managers” are to be paid at the case management rate of $89.07 per hour. Notably, this rate is that which is listed under the unregulated providers category in the Guideline’s Appendix. The Adjudicator confirmed this rate as being applicable to case managers regardless of other professional designation such as social worker or occupational therapist.
With its release, FSCO has acknowledged the inquiries received from the industry and has clarified that expenses for regulated and unregulated providers identified in the Professional Services Fee Guideline are payable according to their professional designation and not by the service that they provide. In an abundantly clear fashion, Brian Mills, who is the CEO and Superintendent of Financial Services, states as follows: “For example, case management services provided by an occupational therapist are payable at the occupational therapist rate and not at the case manager rate”.
There is much gratitude owed to the many people in our industry who tirelessly advocated to insurers and to FSCO for these necessary revisions. Gratitude is also owed to the many rehabilitation professionals, attendant care providers, legal representatives and adjusters who continued to work collaboratively, for the good of our clients, in the face of this past disrupt. Thanks are also, of course, owed to FSCO for their prompt attention to our pleas.
For further information, you may access the complete FSCO bulletin by clicking here.
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