SABS, One Year Later
It has now been a little over a year since the Ontario government revised the statutory accident benefits regime by passing Statutory Accident Benefits Schedule – Effective September 1, 2010. O. Reg. 34/10 (SABS). This new regulation reduced the insurance benefits available to people injured in motor vehicle accidents.
While it is too soon to comment on the long-term effects this regulation will have on accident victims and health professionals in Ontario, this article will review some concerns that health professionals and claimants have raised recently.
HCAI AND OCF-18s
Health Claims for Auto Insurance is an electronic system for transmitting auto insurance health claim forms between insurers and health care facilities in Ontario. Health professionals have expressed concern that insurers are not reviewing OCF-18 Treatment and Assessment Plans submitted on HCAI for weeks or months after submission. Section 38(8) of the SABS provides that an insurer must respond to an OCF-18 within 10 days of receiving it. However, the insurers are treating that timeframe as only commencing on the date they review the OCF-18 on HCAI. Health professionals should contact the claimant’s lawyer, the insurer’s Ombudsman and/or FSCO to lodge a formal complaint should insurers continue to be delinquent in responding to Treatment & Assessment Plans.
Despite changes to the SABS, health care professionals are still receiving responses from insurers stating that their proposed services are “not reasonable or necessary”. Section 38(8) of the SABS specifies that insurers are required to provide “…the medical and any other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable or necessary”. Our experience thus far indicates that many insurance adjusters are still denying treatment plans on the ‘old’ basis that the proposed services are not “reasonable or necessary”. Health care professionals and legal counsel should insist that the insurer provide the requisite medical and other reason(s) as required by section 38(8) of the SABS.
In too many cases insurers are now denying OCF-18s and setting up numerous Insurer Examinations to respond to the OCF-18. The new $2,000 cap on assessment costs in the SABS has resulted in some insurers increasing the number of IE assessments undertaken. Unfortunately, there is no deadline for the insurer to complete the IEs under the new SABS. The only deadline is found in section 36 (7), which provides that the IE reports must be produced to the claimant within 10 days of the insurer receiving them.
While insurers are not violating the SABS with their tardy behavior in some cases, the delays often result in claimants going without treatment for long periods at critical times. In egregious cases practitioners should document the client’s treatment needs and the detriment the delay in treatment may cause the client. Documented delays in treatment and their deleterious effects on clients will assist counsel and clients should there be an action against the insurer. Also, documenting the delays and its effects on clients will buttress any letter of complaint sent to the Ombudsman or to FSCO.
Assessment Limit Remains at $2,000
Another issue arising is insurers taking the position that the $200 maximum fee for an OCF-18 referred to in section 25 (1) (3) of the SABS means that health care providers can only charge $200 for an assessment or examination done as part of an OCF-18. FSCO has now clarified that the $200 cost only applies to the cost incurred by a health practitioner in reviewing and approving an OCF-18 form. The $200 maximum does not apply to assessments or examinations proposed in an OCF-18. $2,000 is still the financial limit on assessments or examinations proposed in an OCF-18. Professional Services Guideline No. 01/11 clarifies this issue and you can find it on the FSCO web site.
Limits on Attendant Care
In some cases a client requires a significant amount of attendant care services. Some insurers are taking the position that the maximum benefit payable to a family member for providing that care is the amount of economic loss the family member has incurred to provide the care. For example, if a spouse has given up a job that paid $500 per week to care for their spouse, the insurer is claiming that the maximum attendant care payable is $500 per week. Some insurers are taking this position even though the client may require 24/7 attendant care. Our law firm has been successful on several occasions in fighting this interpretation because there is no support for it in the SABS.
We are all struggling to adapt to the new SABS and the difficulties the changes have created in providing adequate insurance coverage to pay for medical and rehabilitation services. Legal counsel and health care practitioners will have to redouble their efforts to ensure that their clients receive all the available insurance benefits under the SABS so they can reach maximum medical recovery.
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