Thomson Rogers EBulletin: New SABS Requirements For Insurers To Pay For In-direct Or Virtual Services Provided To Car Accident Victims Under COVID-19

Correction: FSRA has indicated that insurers are not obliged to pay for the services mentioned in the summary below, but are encouraged to consider paying for same on a case by case basis. Secondly, complaints or concerns with respect to insurer conduct or breaches of the UDAP should be directed to the Market Conduct Branch at the contact information mentioned in the Release below, which is repeated here for convenience:

Financial Services Regulatory Authority of Ontario
Market Conduct Branch
Box 85 5160 Yonge Street
Toronto, ON, M2N6L9
Phone 416-250-7250;4 (to leave message to be returned within 24 hours as FSRAO reps are “working remotely”)

On June 3, 2020, the Ontario Government’s Financial Services Regulatory Authority (FSRA) released Interpretation Bulletin No. AU0133INT which provides help for car accident injury victims and medical, rehabilitation and attendant care providers gain access to funding for virtual or indirect services. This is in furtherance of FSRA’s statutory obligation under the Insurance Act to “protect the rights and interests of insurance consumers.” This release summarizes the Bulletin (found here). It also provides information about what to do if an insurer is not honouring its obligation of good faith to enable injured car accident victims ongoing access to the services and care vital for their recovery.

COVID-19 has been extremely difficult for all of us. Those who have suffered injuries and require ongoing daily support from treatment and care providers have suffered severely, with an increased inability to access vital services to their physical, cognitive and emotional health. This has contributed universally to deterioration physically and emotionally. Thankfully, many providers have persevered and innovated to find ways to deliver helpful intervention, therapy and guidance through remote access to patients and clients.

That said, there have been many who have suffered reductions in services caused by insurer delay in agreement to remote, indirect/virtual services and/or in denying payment for personal protective equipment for in person services. Further delays have been occasioned when insurers have purported to delay or deny services due to alleging that they can’t or won’t proceed on insurer examinations owing to COVID-19. This has resulted in unnecessary and unconscionable loss of support and accident victims suffering increasing deterioration and isolation.

There are existing provisions in the Unfair and Deceptive Acts and Practices provisions of the SABS which trauma legal counsel should access to lodge a complaint with the UDAP Registrar when there has been “any conduct resulting in the unreasonable delay in, or resistance to, the fair adjustment and settlement of claims.” These provisions have now been strengthened by the Bulletin.

Highlights of the Bulletin are as follows:

Insurers are now required to provide “reasonable accommodation to reasonably address” the insured’s needs. Some of the accommodations include but are not limited to the following:

• Insurers shall allow email or phone consent rather than require forms signed.
• Insurers shall waive or relax requirements (such as form submission or participation in insurer examinations to determine benefit entitlement).
• Insurers shall permit requirements to be met through alternate means, such as virtual assessments/examinations.
• Insurers shall pay for reasonable and necessary “virtual care” delivered by health care professionals and where supported by the hcp’s regulatory college.
• Insurers can still require OCF 18’s indicating the provision of virtual/indirect care in lieu of in person care, but must act reasonably in deciding whether to approve. This should include the consideration whether the insured could reasonably be expected to deteriorate should the services be delayed or denied.
• Health service providers providing virtual care must explain what it involves, objectives, limitations compared to in-person treatment/care and cost. This should be undertaken with both the claimant and the adjuster.
• Health service providers should use the HCAI billing codes as a proxy to identify care provided “that was [or is proposed to be] delivered virtually, IN-Indirect, for service provided by phone or video and SD-Self directed for taped or videoed services.”

COMMENTS

• Insurers need to ensure approvals are provided for all health care provider recommendations for indirect or virtual services and care and failure to do so is in breach of their duty of good faith when they can reasonably expect the accident victim will deteriorate if he or she doesn’t receive services recommended by health care professionals.
• Insurers have an ongoing duty to pay for indirect and/or direct attendant care under section 40(3) of the SABS and the amount shall be determined assuming the impairment is CAT, if the CAT application was made within 104 weeks of the accident and immediately before the application the insured person was receiving attendant care benefits.
• Insurers have a duty to pay for COVID-19 related goods such as PPE for providers and clients who are receiving in person services.
• Virtual team meetings are payable by insurers.
• Treating professionals may conduct virtual assessments within their scope of practice including attendant care assessments. It is recommended that the virtual assessments include access to collateral sources of information about needs and reports refer to these additional sources of communication.
• Preapproval requests are also mandated to be agreed to for virtual or indirect services to be provided or already provided – see “Transparency” comment in Bulletin. We recommend that providers contact adjusters as soon as the need for services is known.
• Section 3(8) of the SABS and the LAT decision 17-001681 v MVACF (counsel for applicant Stephen Birman of Thomson Rogers) provide that insurers may be compelled to pay for attendant care provided that the adjudicator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, he or she may deem the expense to have been incurred. As such, whether during COVID-19 or otherwise, the insured can’t afford to pay attendant care, whether care was provided by family or not, attendant care may be payable as a result of a LAT arbitration if it was found to be reasonable and necessary.

ENFORCEMENT OF THIS BULLETIN BY FSRA

The FSRA makes clear it will have Compliance Expectations of Insurers to this Bulletin requirements.

Trauma lawyers will need to advocate for their clients and they and health care professionals will need to ensure that any failures by insurers to continue to allow car accident victims access to vital medical, rehabilitation and care services in this time of increased isolation and decreased support, be reported to the Registrar of Unfair and Deceptive Acts and Practices at:

Financial Services Regulatory Authority of Ontario
Market Conduct Branch
Box 85 5160 Yonge Street
Toronto, ON, M2N6L9
Phone 416-250-7250;4 (to leave message to be returned within 24 hours as FSRAO reps are “working remotely”)

EMAIL COMPLAINTS

A best practices approach is to email the complaint to the Market Conduct Branch, as they direct at: contactcentre@fsco.gov.on.ca and to communicate with your trauma lawyer as to further intervention on these critical issues.

In addition, if adjusters are failing or refusing to continue benefits or permit access to medical, rehabilitation or attendant care services provided virtually, then providers and/or trauma counsel should write to the insurer Ombudspersons and Vice President of claims, copying the Registrar of Unfair and Deceptive Acts and Practices, requesting a full investigation of the adjuster’s delay denial / refusal for these vital supports.

Finally, accident benefit insurers and all insurers who are acting as first party insurers in respect of their policy holders or any accident victim applying for accident benefits a duty of good faith in the execution of all of their responsibilities under the policy. The courts and legislation require that provisions under the Insurance Act oblige insurers to give “fair, large and liberal interpretation” to their responsibilities under the contract, under SABS and under the Insurance Act.

In 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s London, (2000), 184 D.L.R. (4th) 687 the Ontario Court of Appeal described the obligation of insurers as follows:
The relationship between an insurer and an insured is contractual in nature. The contract is one of utmost good faith. In addition to the express provisions in the policy and the statutorily mandated conditions, there is an implied obligation in every insurance contract that the insurer will deal with claims from its insured in good faith: Whiten v. Pilot Insurance Co. (1999), 42 O.R. (3d) 641 (Ont. C.A.). The duty of good faith requires an insurer to act both promptly and fairly when investigating, assessing and attempting to resolve claims made by its insureds.

S. 258.5(1) of the Insurance Act, R.S.O. 1990, c. I.8 requires an insurer to “attempt to settle the claim as expeditiously as possible.” Under s.258.5(5), “an insurer’s failure to comply with this section shall be considered by the court in awarded costs.”

David MacDonald and Stephen Birman will be presenting in the Thomson Rogers webinar series shortly on the topic: SPECT Scans Providing Positive Findings of Brain Injury for Car Accident Victims Suffering Mild to Moderate Brain Injury: Helping Clients Access Entitlement to Catastrophic Designation.

David MacDonald is a partner and personal injury trial lawyer at Thomson Rogers. David can be reached at 416-868-3155 or by EMAIL. 

A list of David’s publications and presentations can be found here.