Best practices for reporting in a virtual world
Thank you to everyone who attended our Thomson Rogers Webinar Series “Best Practices for Reporting in a Virtual World” held May 29, 2020 conducted by Thomson Rogers’ personal injury lawyers Leonard Kunka, Stacey Stevens and Matthew Sutton.
Post Webinar Update
Following our webinar, The Financial Services Regulatory Authority of Ontario posted this helpful SABS advisory about provision of health care services virtually where in-person treatment cannot be provided due to COVID-19. The advisory also makes it clear, as we suggested at our webinar, that unreasonable denial by an insurer for virtual health care services which follow these guidelines could be considered an unfair and deceptive practice by an insurer.
Read the advisory here.
Questions & Answers
Q1: Many have asked whether a client can continue to refuse in-home treatment, assessments or IME’s.
With the government extending the state of emergency for Ontario, I do not believe anyone can force a client to receive in-home treatment, assessment or attend an in-home IME if they are concerned about their safety or concerned about some family member who may be immunocompromised. Concern about other family members’ health is also a legitimate concern and a valid reason for some claimants to refuse in-home assessments at this time. Just as employers cannot force employees to come back to work under the current restrictions, we do not believe any insurer can insist that the claimant must attend an in-person IME or in-home IME. While we believe that with appropriate use of PPE and distancing during any in-home assessment/treatment/IME, most people should be safe, however, there will be situations where a client refuses to have any in-person or in-home contact with a health care worker, and in those situations, consider doing the assessment outside the home in a park or other location where the client may feel more comfortable, with of course, appropriate PPE and distancing in place. As discussed during the webinar, if the client has agreed to in-home treatments or assessments by their own treatment providers, or assessments arranged by their own counsel, it is going to be very difficult to resist an in-home IME. Similarly, if health care providers begin to provide in-clinic treatment, and a patient refuses to wear PPE for the treatment in clinic, the clinic can certainly refuse to provide treatment. There are many businesses, both medical and other types of businesses, who are refusing to allow people into their place of business if they do not wear a face mask and/or gloves.
Q2: Many participants asked about family members who have been forced to assume attendant care duties during COVID-19. Should the hours be documented? Should the type of attendant care activities be documented? How do we get family members paid for this service?
Absolutely the hours being spent and the type of attendant care being provided should be carefully documented for the insurer and for the claimant’s counsel. It is up to counsel for the claimant to contact the insurer and work out payment to family members instead of a professional care provider in situations where an attendant care provider can no longer come into the home, and as a result, a family member has taken over these duties. If the insurer refuses to pay for the attendant care being provided by the family member, then as counsel for the claimant, I would file for a LAT hearing on that denial, and for the purposes of that hearing the documentation of the care being provided by the family member and the hours being spent are going to be crucial for the hearing. If a case is going to proceed to a hearing on this issue, then the claimant’s counsel should also be requesting a report from the health care worker/company who was providing the attendant care prior to COVID-19 to confirm that they have been unable to provide care during the pandemic restrictions. In some cases, the professional caregiver company may have had to provide instruction or some degree of training over the phone or by video conference to help family members in providing the necessary attendant care, and if that occurs, then that should also be detailed in the report.
Q3: Should health care providers be encouraging claimants to agree to in-home treatment because many treatment providers feel they are missing a lot of information by completing treatment by telephone and video conferencing?
Obviously, in many situations, in-person treatment is preferable, particularly where there are physical impairments, which the treatment provider benefits from being with the claimant personally to provide treatment. Each health care worker has to assess the merits of in-person treatment against the risk of exposure to COVID-19 posed for the claimant, the health care provider and the claimant’s family. If in-person treatment is required because alternative forms of treatment are ineffective, then ensure that other family members are out of the home during treatment sessions; ensure appropriate PPE is in place for the claimant and health care worker and maintain appropriate social distancing. Clients should at this point be educated on the ability of various health care professional’s ability to perform in-home treatment in a safe manner with appropriate safeguards in place, as this is certainly going to be the way in-person treatment is going to be provided likely for an extended period of time.
Q4: What about the cost of PPE? Should this be added to the treatment provider’s treatment plan? What about the hourly rates which were supposed to already include PPE in the hourly rate?
This is a new issue for everyone. The cost of PPE in some cases has soared and is making it difficult for health care providers to continue with providing treatment because insurers will not approve the additional costs of PPE. We are already seeing some of these costs coming down as more PPE becomes available on the market. If you run into an adjuster who will not approve the additional cost of PPE to allow you to treat a client, contact the claimants counsel immediately. This should not be something which adjusters refuse to pay for. By accessing the company’s ombudsman or various government agencies, pressure can be applied to insurers not to deny these type of expenses.