Note: Ontario Regulation 403/96 has previously been amended. Those amendments are listed in the Table of Regulations — Legislative History Overview which can be found at www.e-laws.gov.on.ca.
For preliminary drafting purposes only, the amendments and transition provisions assume the changes will come into force on January 1, 2005. This is for the purposes of reference only and should not be taken as the date on which any regulations in fact may come into effect .
1. (1) The definition of “designated assessment centre” in subsection 2 (1) of Ontario Regulation 403/96 is revoked and the following substituted:
“designated assessment centre” means an assessment centre referred to in Part XI; (“centre d’évaluation désignée”)
(2) Subsection 2 (1) of the Regulation is amended by adding the following definitions:
“assessment of attendant care needs” means a written assessment of attendant care needs that satisfies the requirements of section 39; (“”)
“disability certificate” means, in respect of a person, a certificate from a health practitioner of the person’s choice that states the cause and nature of the person’s impairment and contains an estimate of the duration of the disability in respect of which the person is making or has made a claim for a benefit set out in this Regulation; (“”)
2. Section 3 of the Regulation is amended by adding the following subsection:
(4) An insurer is not required to pay a benefit under this Regulation unless the insured person is entitled to receive the benefit under the provisions of this Regulation.
3. Section 20 of the Regulation is amended by adding the following subsections:
(2.1) The insurer may require a person who claims an amount under this section to furnish a completed disability certificate as often as is reasonably necessary.
(2.2) If an insurer requires a completed disability certificate, the person shall furnish the certificate,
(a) within 21 days after receiving the insurer’s request, if the insurer’s request is received before January 1, 2005; or
(b) within 14 days after receiving the insurer’s request, if the insurer’s request is received after December 31, 2004.
(2.3) If the person fails to comply with subsection (2.2), no amount is payable for lost educational expenses until the person furnishes the completed certificate.
4. (1) Subsections 24 (1) and (1.1) of the Regulation are revoked and the following substituted:
(1) The insurer shall pay the following expenses incurred by or on behalf of an insured person:
1. Reasonable fees charged by a health practitioner for preparing a disability certificate required under section 20, 35 or 37.
2. Reasonable fees charged by a health practitioner for reviewing a treatment plan under section 38, and for approving it, if appropriate.
3. Reasonable fees charged by a member of a health profession for preparing an application for approval of an examination under section 38.2.
4. Reasonable fees charged by a member of a health profession for preparing an assessment of attendant care needs under section 39.
5. Reasonable fees charged by a health practitioner for preparing an application for a determination of catastrophic impairment under section 40.
6. Fees charged for a designated assessment of an insured person.
7. Fees charged in accordance with a Pre-approved Framework Guideline by a health practitioner for preparing a treatment confirmation form for the purposes of section 37.1.
8. Fees charged in accordance with a Pre-approved Framework Guideline by a member of a health profession for conducting an examination for the purposes of section 37.1.
9. Reasonable fees, other than fees referred to in any of paragraphs 1 to 8, that are charged by a member of a health profession or another person for conducting an examination if,
i. the examination is reasonably required in connection with a benefit that is claimed or in connection with the preparation of a treatment plan, disability certificate, assessment of attendant care needs or application for the determination of a catastrophic impairment,
ii. the examination, if it is conducted by a person who is not a member of a health profession, is conducted in accordance with an application for approval of an examination or a treatment plan prepared by a member of health profession, and
iii. the conditions set out in paragraph 1, 2 or 3 of subsection (1.0.1) are satisfied.
(1.0.1) The conditions for the purposes of subparagraph 9 iii of subsection
(1) are the following:
1. The examination relates to ancillary goods or services described in section
37.2 and is contemplated by a treatment confirmation form submitted in accordance
with section 37.1.
2. The insured person applied for approval of the examination either in a treatment plan submitted under section 38 or by way of a separate application submitted under section 38.2.
3. The insurer approves the expense or the approval of the insurer is not required by reason of subsection (1.2).
(1.1) Despite subsections (1) and (1.0.1), an insurer is not required to pay for an examination referred to in paragraph 2 of subsection (1.0.1) if the expense for the examination is incurred before the insurer approves the expense or before the insurer receives the report of,
i. an examination under section 42 and makes a determination of whether to approve the expense, or
ii. a designated assessment, in the case of an application for approval of an examination under section 38.2 where the insured person is required to undergo a designated assessment.
(2) Subsections 24 (1.2), (1.3), (1.4) and (1.5) of the Regulation are revoked and the following substituted:
(1.2) The prior approval of an insurer is not required for the following:
1. An examination for the purposes of preparing a treatment plan under section 38 in circumstances in which an immediate risk of harm to the insured person or a person in the insured person’s care makes obtaining the prior approval of the insurer impractical.
2. Not more than three examinations for the purposes of preparing a treatment plan under section 38 if,
i. the cost of each examination does not exceed $180, and
ii. not more than one examination is done by the same person.
3. An examination for the purposes of preparing a disability certificate under section 20, 35 or 37 if the cost of the assessment or examination does not exceed $180.
4. An examination for the purposes of preparing an assessment of attendant care needs under section 39, but not an examination relating to an impairment that comes within a Pre-approved Framework Guideline unless the Guideline expressly states that the prior approval of the insurer is not required for the examination.
5. An examination for the purposes of determining if an insured person has a catastrophic impairment, if the insured person is hospitalized or is in a long-term care facility at the time of the examination.
6. An examination conducted after the insurer notifies the insured person that, before the examination is conducted, the insurer does not require the submission of a treatment plan under section 38 or an application for approval of an examination under section 38.2.
(3) Subsection 24 (1.6) of the Regulation is amended by striking out “assessment or”.
(4) Clauses 24 (4) (a) and (b) of the Regulation are revoked and the following substituted:
(a) the first 50 kilometres of transportation in the insured person’s automobile to and from an examination, if the examination relates to an accident that occurred before April 15, 2004; or
(b) the first 50 kilometres of transportation to and from an examination, if the examination relates to an accident that occurred after April 14, 2004, unless the insured person sustained a catastrophic impairment as a result of the accident.
(6) Subsection 24 (5) of the Regulation is revoked.
5. (1) Subsection 32 (3) of the Regulation is revoked and the following substituted:
(3) Within 30 days after receiving the application forms, the person shall complete and submit to the insurer the appropriate application forms for the benefits and expenses the person is claiming and any other forms, documents or information required by this Regulation or the insurer to be submitted with or as part of the application for the particular benefit or type of expense.
(2) Subsection 32 (5) of the Regulation is revoked and the following substituted:
(5) If subsection (3.1) applies in respect of an incomplete application,
(a) the application shall not be considered to be received by the insurer until the day the insurer receives the missing information; and
(b) no benefit is payable before the insurer receives the missing information.
(3) Subsection 32 (6) of the Regulation is revoked and the following substituted:
(6) Despite any shorter time limit in this Regulation, if a person fails without a reasonable explanation to notify an insurer under subsection (1) within the time required under subsection (1.1), the insurer may delay determining if the person is entitled to a benefit under section 35, 38, 39 or 41 and may delay paying the benefit until the later of,
(a) the 45th day after the day the insurer receives the person’s application; or
(b) the 14th day after the person complies with any request made by the insurer under subsection 33 (1) or (1.1).
6. The Regulation is amended by adding the following section:
32.1 (1) An insurer may, at a person’s request or with his or her consent, arrange for the person to be examined by one or more members of the health professions for the purposes of determining the person’s eligibility for a benefit before the person submits an application under subsection 32 (3).
(2) The insurer shall notify the person to be examined of the time and place for the pre-claim examination and the name of the person or persons who will conduct the examination.
(3) The insurer shall obtain the written and signed consent of the person
to be examined under this section before the pre-claim examination.
(4) A person who conducts a pre-claim examination under this section may prepare
a disability certificate for the purposes of section 35, a treatment plan for
the purposes of section 38 or an assessment of attendant care needs for the
purposes of section 39 if the person is legally authorized to treat the impairment
to which the certificate, plan or assessment relates.
(5) After conducting a pre-claim examination, the person or persons who conducted the examination shall, within five days, prepare a written report and provide a copy of the report to,
(a) the insurer;
(b) the person who was examined; and
(c) the health practitioner of the person who was examined.
(6) A pre-claim examination under this section is voluntary and the failure or refusal of a person to consent to a pre-claim examination does not prejudice any rights the person may have to receive benefits.
7. The heading before section 34 and section 34 of the Regulation are revoked.
8. The heading before section 35 and section 35 are revoked and the following substituted:
35. (1) In this section and section 37,
“specified benefit” means an income replacement benefit, non-earner benefit, caregiver benefit or a payment for housekeeping expenses or home maintenance services under section 22. (“”)
(2) A person who applies for a specified benefit shall submit a completed disability certificate with the application.
(3) Not more than 14 days after the insurer is in receipt of the completed disability certificate and the application or incomplete application, the insurer shall,
(a) pay the specified benefit;
(b) send a request to the person under subsection 33 (1) or (1.1); or
(c) give a notice to the person that complies with section 42, requiring an examination under that section.
(4) If the insurer sends a request to the person under subsection 33 (1) or (1.1), the insurer shall, not more than 14 days after the person complies with the request,
(a) pay the specified benefit; or
(b) give a notice to the person that complies with section 42, requiring an examination under that section.
(5) A specified benefit that is an income replacement benefit, non-earner benefit or caregiver benefit shall be paid at least once every second week, subject to any prepayment of the benefit by the insurer.
(6) An insurer shall not make a determination that a person is not entitled to a specified benefit unless,
(a) the person fails or refuses to submit the completed disability certificate required under subsection (2);
(b) an examination has been conducted under section 42 and the insurer has received the report of the examination;
(c) the person failed or refused to comply with section 42; or
(d) the person is not entitled to the specified benefit under another section of this Regulation for reasons other than whether he or she has an impairment that entitles the person to the specified benefit.
(7) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the specified benefit to the person and the person’s health practitioner.
(8) The determination of the insurer shall specify the benefits and expenses the insurer will pay for, the benefits and expenses the insurer will not pay for and the reasons for the insurer’s decision.
(9) If the person fails or refuses to submit to an examination under section 42 required by the insurer under this section or fails to comply with subsection 42 (8),
(a) the insurer may make a determination that the person is not entitled to a specified benefit; and
(b) the insurer may refuse to pay a specified benefit relating to the period after the person failed to submit to the examination or failed to comply with subsection 42 (8) and before the person submits to the examination and complies with that subsection.
(10) If the person subsequently complies, the insurer,
(a) shall make a new determination under this section; and
(b) may pay all amounts, if any, that were withheld during the period of non-compliance, if the person provides a reasonable explanation for not attending the examination or not complying with subsection 42 (8).
(11) If the insurer determines after receipt of the report under section 42 that the person is entitled to a specified benefit, the insurer shall pay the specified benefit within 10 business days after receiving the report.
(12) If a person fails to comply with subsection (2), no specified benefit is payable for the period after the day the insurer receives the application and before the day the insurer receives the completed disability certificate.
9. The heading before section 37 and section 37 of the Regulation are revoked and the following substituted:
37. (1) If an insurer wishes to determine if the person continues to be entitled to receive a specified benefit, the insurer,
(a) shall request the person to submit a completed disability certificate within 14 days of receiving the request; and
(b) may give a notice to the person that complies with section 42, requiring an examination under that section.
(2) If a person fails to submit a completed disability certificate as required under clause (1) (a), no benefit is payable for the period that is more than 14 days after the person received the insurer’s request and before the day the insurer receives the completed disability certificate for the person.
(3) An insurer shall not discontinue paying a specified benefit to a person unless,
(a) the person fails or refuses to submit a completed disability certificate as required under clause (1) (a);
(b) an examination of the person under section 42 has been conducted and the insurer has received the report of the examination;
(c) the person failed or refused to submit to an examination under section 42 or fails to comply with subsection 42 (8) and the insurer may stop payment under subsection (6);
(d) the person has resumed his or her pre-accident employment duties;
(e) the insurer is no longer required to pay the benefit by reason of subsection 5 (2), 13 (4), 22 (3) or 33 (2) or section 55 or 56; or
(f) the person is not entitled to the specified benefit by reason of another section of this Regulation for reasons other than whether he or she has an impairment that entitles the person to the specified benefit.
(4) Within five business days after receiving a report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the specified benefit to the person and the person’s health practitioner.
(5) The determination of the insurer shall specify the benefits and expenses the insurer will pay for, the benefits and expenses the insurer will not pay for and the reasons for the insurer’s decision
(6) If the person fails or refuses to submit to an examination under section 42 required by the insurer or fails to comply with subsection 42 (8),
(a) the insurer may make a determination that the insured person is no longer entitled to the specified benefit;
(b) the insurer may stop payment of the specified benefit until the person submits to the examination or complies with subsection 42 (8); and
(c) the insurer may refuse to pay a specified benefit relating to the period after the person failed to submit to the examination or failed to comply with subsection 42 (8) and before the insured person submits to the examination and complies with that subsection.
(7) If the person subsequently complies, the insurer,
(a) shall make a new determination under this section;
(b) subject to the new determination, shall resume payment of the benefit; and
(c) may pay all amounts, if any, that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for not attending the examination or not complying with subsection 42 (8).
10. (1) Subsection 37.1 (13) of the Regulation is revoked.
(2) Subsection 37.1 (15) of the Regulation is amended by striking out “assessments or” wherever it appears in the portion before clause (a).
(3) Clause 37.1 (15) (b) of the Regulation is amended by striking out “assessments and”.
11. Subsections 37.2 (2), (3), (4) and (5) of the Regulation are revoked and the following substituted:
(2) If a treatment confirmation form under section 37.1 includes a claim for ancillary goods or services, the insurer shall,
(a) include in the notice required under subsection 37.1 (5) a statement of what ancillary goods and services, if any, the insurer agrees to pay for; and
(b) give the insured person a notice that complies with section 42 requiring an examination relating to any ancillary goods and services the insurer does not agree to pay for, if the insurer does not agree to pay for all of the ancillary goods and services.
(3) A notice referred to in clause (2) (b) must be given to the insured person no later than the fifth business day after the day the insurer receives the treatment confirmation form.
(4) If the insurer fails to comply with the requirements of subsection 37.1 (5) or subsection (3) within the time required under those subsections, the insurer shall pay for all ancillary goods and services delivered under the treatment confirmation form.
(5) Within five business days after receiving a report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the benefit to the insured person and the insured person’s health practitioner.
(6) The determination of the insurer shall specify the ancillary goods and services the insurer will not pay for and the reasons for the insurer’s decision.
(7) If an insured person fails or refuses to submit to an examination required by the insurer under section 42 or fails to comply with subsection 42 (8), the insurer may make a determination that the insured person is not entitled to the ancillary goods and services to which the examination relates.
(8) If an insured person subsequently complies with section 42, the insurer shall make a new determination under this section.
12. (1) Clause 38 (1) (b) of the Regulation is revoked and the following substituted:
(b) applications for examinations that are submitted with a treatment plan under subsection (2).
Subsections 38 (1.1) and (2) of the Regulation are revoked and the following substituted:
(1.1) An application for a medical or rehabilitation benefit must be signed by the insured person, unless the insurer waives that requirement, and must include if section 38.1 does not apply,
(a) a treatment plan prepared by a member of a health profession that complies with subsection (3); and
(b) a statement by a health practitioner approving the treatment plan referred to in clause (a) and stating that he or she is of the opinion,
(i) that the expenses contemplated by the treatment plan are reasonable and necessary for the insured person’s treatment or rehabilitation, and
(ii) that the impairment sustained by the insured person does not come within a Pre-approved Framework Guideline.
(2) An insurer is not liable to pay for any expense in respect of a medical or rehabilitation benefit that is incurred before the insured person submits an application for the benefit that satisfies the requirements of subsection (1.1).
(3) Subsection 38 (3.1) of the Regulation is revoked.
(4) Subsections 38 (6) to (21) of the Regulation are revoked and the following substituted:
(6) On receiving an application, the insurer shall promptly determine which goods and services contemplated by the treatment plan the insurer agrees to pay for.
(7) If no notice is given under subsection (5), the insurer shall give the insured person,
(a) a notice,
(ii) that discloses any conflict of interest the insurer has relating to the treatment plan,
(ii) that describes what goods and services, if any, contemplated by the treatment plan that the insurer agrees to pay for, and
(iii) that complies with section 42 and requires an examination under that section in respect of any goods and services the insurer has not agreed in the notice to pay for, unless the insurer agrees to pay for all goods and services contemplated by the treatment plan; or
(b) a notice,
(i) that advises the insured person that the insurer believes that the insured person has an impairment to which a Pre-approved Framework Guideline applies, and
(ii) that complies with section 42 and requires an examination under section 42 to determine if the person has an impairment to which a Pre-approved Framework Guideline applies.
(8) A notice required under subsection (7) must be given,
(a) within 14 days after the insurer receives the application, in the case of a notice described in clause (7) (a); or
(b) within five business days after the insurer receives the application, in the case of a notice described in clause (7) (b).
(9) If the insurer fails to give a notice under subsection (7) in accordance with subsection (8), the following rules apply:
1. If the insurer fails to give a notice under clause (7) (b) in accordance with clause (8) (b),
i. the insurer shall give a notice under clause (7) (a) in accordance with clause (8) (a), and
ii. the insurer shall not take the position that the person has an impairment to which a Pre-approved Framework Guideline applies.
2. If the insurer fails to give a notice under clause (7) (a) in accordance with clause (8) (a), the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting on the 15th day after the insurer receives the application and ending on the day the insurer gives the notice described in clause (7) (a).
(10) If the insurer discloses a conflict of interest relating to the treatment plan in a notice given under clause (7) (a), the insured person may withdraw the application and submit a new application no later than the 14th day after receiving the notice.
(11) If the application is not withdrawn under subsection (10), the insurer shall pay for the goods and services the insurer agreed to pay for in the notice under clause (7) (a), or is required to pay for under paragraph 2 of subsection (9), within 30 days after receiving an invoice for them.
(12) If an insurer gives a notice described in clause (7) (b), the insured person may submit a treatment confirmation form under section 37.1 and receive goods and services in accordance with the Pre-approved Framework Guideline and ancillary goods and services which the insurer believes applies to the insured person’s impairment pending the insurer’s determination.
(13) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the benefit to the insured person and the insured person’s health practitioner.
(14) The determination of the insurer shall specify,
(a) the goods and services contemplated by the treatment plan that the insurer will pay for, the goods, services the insurer will not pay for and the reasons for the insurer’s decision, in the case where the insurer gave a notice referred to in clause (7) (a); or
(b) whether the insurer has determined that the insured person has an impairment to which a Pre-approved Framework Guideline applies and the reasons for the insurer’s decision, in the case where the insurer gave a notice referred to in clause (7) (b).
(15) If an insured person fails or refuses to submit to an examination required by the insurer under section 42 or fails to comply with subsection 42 (8), the insurer may make a determination that the insured person is not entitled to the goods and services contemplated by the treatment plan.
(16) If an insured person subsequently complies with this section, the insurer, shall make a new determination under this section.
(17) If it comes to the attention of the insurer, after the insurer gives a notice under clause (7) (a) describing goods and services it agrees to pay for, that a person described in subsection (3) or (4) has a conflict of interest relating to the treatment plan, the insurer may give the insured person notice requiring the insured person, within 14 days after receiving the notice, to amend the treatment plan to remove the conflict of interest.
(18) If the insured person does not comply with a notice under subsection (17), the insurer is not required to pay for any further expenses for goods or services from which the conflict of interest arises.
(19) Subsections (5), (10) and (18) do not apply if there is no other person within 50 kilometres of the insured person’s residence who is able to provide the goods or services from which the conflict of interest arises.
13. (1) Section 38.1 of the Regulation is amended by adding the following subsection:
(4.1) If a member of a health profession has referred an insured person to a person who is not a member of a health profession for the purposes of an examination in relation to a claim by the insured person for a medical or rehabilitation benefit, the member shall give the insurer and the insured person a notice,
(a) stating that the member has made reasonable inquiries to determine whether the person has a conflict of interest in relation to the provision of any goods or services to be provided to the insured person in relation to the claim; and
(b) disclosing the nature of the conflict of interest, if the member is aware of one.
(2) Subsection 38.1 (5) of the Regulation is revoked and the following substituted:
(5) If a conflict of interest is disclosed under subsection (4) or (4.1), the insurer may give the insured person a notice requiring the insured person to submit a treatment plan to the insurer under section 38 and, if a notice is given under this subsection,
(a) the insurer is not liable under this section to pay expenses other than expenses incurred before the notice was given;
(b) subsections (1) to (4.1) do not apply; and
(c) the insured person may submit an application and treatment plan under section 38.
14. The heading before section 38.2 and section 38.2 of the Regulation are revoked and the following substituted:
38.2 (1) This section applies to an application prepared by a member of a health profession for approval of an examination of an insured person if the application is not submitted as part of a treatment plan under section 38.
(2) The application shall include a statement by the member,
(a) disclosing any conflict of interest that he or she has relating to the examination to which the application relates;
(b) indicating that he or she has made reasonable inquiries to determine whether any person who is not a member of a health profession who is to conduct an examination to which the application relates on referral from the member has any conflict of interest relating to the examination and, if there is a conflict, disclosing the nature of the conflict of interest;
(c) indicating that he or she has made reasonable inquiries to determine whether any person who referred the insured person to him or her or who referred the member to a person mentioned in clause (b) has a conflict of interest relating to the examination and, if there is a conflict of interest, disclosing the conflict of interest that the person has; and
(d) stating that the examination is reasonably required in relation to a benefit under this Regulation.
(3) A lawyer or other representative who acts for the insured person in respect of the application or with respect to any civil proceeding arising from the accident shall, at the time the application is submitted, give the insurer and the insured person a notice disclosing any conflict of interest that the lawyer or other representative has relating to the application.
(4) If a conflict of interest is disclosed under subsection (2) or (3), the insurer may refuse the application and, within two business days after receiving the application, give the insured person notice that the application is refused and that the insured person may submit a new application.
(5) Despite subsection (4), the insurer shall not refuse an application because of a conflict of interest if there is no other person within 50 kilometres of the insured person’s residence who is able to conduct the examination.
(6) If the insurer has not refused the application under subsection (4), the insurer shall give the insured person a notice,
(a) within two business days after receiving the application if,
(i) the application is received after December 31, 2004, or
(ii) the application is received before January 1, 2005 and the amount to be charged for the assessment is $180 or less; or
(b) within five business days after receiving the application if,
(i) the application is received before January 1, 2005, and
(ii) the amount to be charged is greater than $180.
(7) The notice under subsection (6) must,
(a) state for which examinations in the application that the insurer agrees to pay;
(b) comply with section 42 and require an examination under that section, if the insurer does not agree in the notice to pay for all examinations to which the application relates; and
(c) disclose any conflict of interest that the insurer has relating to any examination to which the application relates.
(8) A notice required under subsection (6) may be given verbally to the insured person, to the member of a health profession who prepared the application for approval under this section or to both of them if, as soon as practicable afterwards, written confirmation of the notice is given to everyone who received verbal notice.
(9) If the insurer does not refuse the application under subsection (4) but fails to give the notice as required under subsection (6), the insurer shall pay for all examinations to which the application relates.
(10) If, in a notice referred to in subsection (7), the insurer discloses a conflict of interest relating to an examination to which the application relates, the insured person may withdraw the application and submit a new application within two business days after receiving the notice from the insurer.
(11) Despite subsection (10), the insured person shall not withdraw the application or submit a new application if there is no other person within 50 kilometres of the insured person’s residence who is able to conduct the examination.
(12) If the application is not withdrawn under subsection (10), the insurer shall pay for all examinations it agreed to pay for in the notice referred to in subsection (7) and shall make each payment within 30 days after receiving an invoice for the cost of the examination.
(13) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the application to the insured person and the member of a health profession who prepared the application for approval under this section.
(14) The determination of the insurer shall specify the examinations the insurer will pay for, the examinations the insurer will not pay for and the reasons for the insurer’s decision.
(15) If an insured person fails or refuses to submit to an examination required by the insurer under section 42 or fails to comply with subsection 42 (8), the insurer may make a determination that the insured person is not entitled to the expenses to which the examination relates.
(16) If an insured person subsequently complies with this section, the insurer shall make a new determination under this section.
(17) If, after giving a notice under subsection (6) in which the insurer agrees to pay for an examination, it comes to the insurer’s attention that a person described in subsection (2) or (3) has a conflict of interest relating to the examination, the insurer may give the insured person notice requiring the insured person, within five business days after receiving the notice, to amend the application so that no conflict of interest will arise.
(18) If the insured person does not amend the application as required under subsection (17), the insurer is not required to pay for the examination referred to in that subsection.
(19) Subsection (18) does not apply if there is no other person within 50 kilometres of the insured person’s residence who is able to conduct the examination to which the conflict of interest relates.
15. Section 39 of the Regulation is revoked and the following substituted:
39. (1) If an insured person applies for an attendant care benefit, an assessment of attendant care needs for the person must be prepared and submitted to the insurer by a member of a health profession who is authorized by law to treat the person’s impairment.
(2) Within 14 days after receiving the assessment of attendant care needs, the insurer shall give the insured person a notice,
(a) that advises the insured person which, if any, expenses described in the assessment of attendant care needs that the insurer agrees to pay for; and
(b) that complies with section 42, requiring an examination under that section, if the insurer does not agree in the notice to pay all expenses described in the assessment of attendant care needs.
(3) An insurer may but is not required to pay for an expense incurred before
an assessment of attendant needs that complies with subsection (1) is submitted
to the insurer.
(4) The insurer shall begin payment of the benefit within 14 days after receiving
the assessment of attendant care needs and, pending receipt of the report of
the examination under section 42, shall calculate the amount of the benefit
based on the expenses described in the assessment of attendant care needs.
(5) In order to determine whether an insured person continues to be entitled to an attendant care benefit or the amount of the benefit an insured person is entitled to continue to receive, or to determine both, an insurer shall give the person a notice requiring that an assessment of attendant needs for the insured person that complies with subsection (1) be submitted to the insurer within 14 days after receipt of the notice.
(6) Subject to subsection (11), a notice under subsection (5) may also include a requirement for an examination under section 42.
(7) Subject to subsection (11), additional assessments of attendant care needs may be submitted to an insurer if there are changes that would affect the amount of the benefit.
(8) If an assessment of attendant needs for an insured person is submitted to the insurer indicating that it is appropriate to increase the amount of the attendant care benefit for the person and no examination under section 42 has been required under subsection (6), the insurer may give a notice to the insured person requiring an examination under section 42 before notifying the insured person of whether the insurer agrees to pay the increased amount.
(9) A notice referred to in subsection (6) or (8) requiring an examination under section 42 must comply with the requirements of that section.
(10) If a new assessment of attendant care needs is required under subsection (5) or an examination is required under subsection (6) or (8), the insurer shall, subject to section 18 and pending receipt of the assessment or the report of the examination, as applicable, continue to pay the insured person the attendant care benefit in the amount paid before the notice under that subsection was given.
(11) If more than 104 weeks have elapsed since the accident, the insurer shall not require an examination under section 42 and the insured person shall not submit nor be required to submit an assessment of attendant care needs to the insurer unless,
(a) at least 52 weeks have elapsed since the last examination under section 42; and
(b) the insured person is entitled under section 18 to receive an attendant care benefit more than 104 weeks after the accident.
(12) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to the benefit to the insured person and the insured person’s health practitioner.
(13) The determination of the insurer shall specify the benefits and expenses the insurer will pay for, the benefits and expenses the insurer will not pay for and the reasons for the insurer’s decision.
(14) If an insured person fails or refuses to submit to an examination required by the insurer under section 42 or fails to comply with subsection 42 (8),
(a) the insurer may make a determination that the insured person is not entitled to the attendant care benefit;
(b) the insurer may stop payment of the benefit until the person submits to the examination or complies with subsection 42 (8), in the case where benefits were being paid before the examination; and
(c) the insurer may refuse to pay an attendant care benefit relating to the period after the person failed to submit to the examination or failed to comply with subsection 42 (8) and before the insured person submits to the examination and complies with subsection 42 (8).
(15) If an insured person subsequently complies with section 42, the insurer,
(a) shall make a new determination;
(b) subject to the new determination, shall resume payment of the benefit, in the case where benefits were being paid before the examination; and
(c) shall pay all amounts, if any, that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for not attending the examination or not complying with subsection 42 (8).
(16) If an insurer determines that an insured person is not entitled, by reason of section 18, to an attendant care benefit for expenses incurred more than 104 weeks after the accident, the insurer shall give the person a notice of its determination, with reasons, at least 14 days before the last payment of the benefit, if the insurer has been paying an attendant care benefit to the person.
(17) An assessment of attendant care needs under this section shall be in Form 1 which is dated , 2004 and available on the web site http://www.fsco.gov.on.ca/.
16. Section 40 of the Regulation is revoked and the following substituted:
40. (1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
(2) Within 30 days after receiving an application under subsection (1), the insurer shall give the insured person,
(a) a notice stating that the insurer has determined that the impairment is a catastrophic impairment; or
(b) a notice that complies with section 42 requiring an examination under that section for the purposes of determining if the impairment is a catastrophic impairment.
(3) For the purposes of determining if the insured person is entitled to continue to receive an attendant care benefit more than 104 weeks after the accident, the impairment shall be deemed to be a catastrophic impairment until the insurer receives the report of the examination under section 42 if,
(a) the insured person is receiving an attendant care benefit immediately before the application is made under this section; and
(b) the application under this section is made not more than 104 weeks after the accident.
(4) Within five business days after receiving a report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination with respect to whether the insured person has a catastrophic impairment to the insured person and the insured person’s health practitioner.
(5) The determination of the insurer shall specify the reasons for the insurer’s determination of whether the insured person has a catastrophic impairment.
(6) If an insured person fails or refuses to submit to an examination required by the insurer under section 42 or fails to comply with subsection 42 (8), the insurer,
(a) may make a determination that the insured person does not have a catastrophic impairment;
(b) may stop payment of any benefits that are payable only if the insured person has a catastrophic impairment; and
(c) may refuse to pay a benefit or expense relating to the period after the person failed to submit to the examination or failed to comply with subsection 42 (8) and before the insured person submits to the examination and complies with subsection 42 (8).
(7) If an insured person subsequently complies with this section, the insurer,
(a) shall make a new determination under this section;
(b) subject to the new determination, shall resume payment of the benefit, in the case where benefits were being paid before the examination; and
(c) shall pay all amounts, if any, that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for not attending the examination or not complying with subsection 42 (8).
17. The Regulation is amended by adding the following section:
41.1 (1) Despite sections 35 and 37 and subject to subsection (2), sections
34, 35 and 37 as they read on December 31, 2004 continue to apply in respect
of a claim by a person for an income replacement, non-earner or caregiver benefit
if, under subsection 37 (1) as it read on December 31, 2004, the insurer gave
or was required to give the person, before January 1, 2005, a notice with respect
to the claim.
(2) If after December 31, 2004 an insurer wishes to determine if a person continues to be entitled to receive an income replacement, non-earner or caregiver benefit, section 37 as it reads after December 31, 2004 applies.
(3) Despite subsection 37.2, subsections 37.2 (2) to (5) as they read on December 31, 2004 continue to apply in respect of a claim by an insured person for ancillary goods or services if, under subsection 37.1 (5) as it read on December 31, 2004, the insurer gave or was required to give the insured person, before January 1, 2005, a notice under section 37.1 as it read on December 31, 2004, stating that the insurer requires the insured person to be assessed by a designated assessment centre in respect of ancillary goods or services the insurer will not pay for.
(4) Despite section 38, section 38 as it read on December 31, 2004 continues to apply in respect of a claim for medical and rehabilitation benefits by an insured person if, under subsection 38 (8.1) as it read on December 31, 2004, the insurer gave or was required to give the insured person, before January 1, 2005, a notice referred to in subclause 38 (12) (b) (ii) or (12.1) (b) (ii) as it read on December 31, 2004.
(5) If an insured person has, before January 1, 2005, submitted an application under subsection 38 (3.1) as it read on December 31, 2004, subsection 38 (18) as it read on December 31, 2004 continues to apply in respect of the application.
(6) Despite section 38.2, subsections 38.2 (8) and (10) to (16) as they read on December 31, 2004 continue to apply in respect of an application for approval for an assessment or examination if, under subsection 38.2 (6) as it read on December 31, 2004, the insurer gave or was required to give the insured person, before January 1, 2005, a notice under subsection 38.2 (6) as it read on December 31, 2004, requiring the insured person to be assessed by a designated assessment centre.
(7) Despite section 39, section 39 as it read on December 31, 2004 continues to apply to an application for an attendant care benefit by an insured person if, under subsection 39 (4) as it read on December 31, 2004, the insurer gave or was required to give the insured person, before January 1, 2005, a notice under subsection 39 (4) as it read on December 31, 2004, requiring the insured person to be assessed by a designated assessment centre,
(8) Despite section 39, section 39 as it read on December 31, 2004 continues to apply to an application for an increase in an attendant care benefit if, under subsection 39 (8), as it read on December 31, 2004, an insurer gave or was required to give the insured person, before January 1, 2005, a notice requiring the insured person to be assessed by a designated assessment centre.
(9) Despite section 40, section 40 as it read on December 31, 2004 continues to apply to an application for a determination of whether an insured person has a catastrophic impairment if, under subsection 40 (2) as it read on December 31, 2004, the insurer gave or is required to give the insured person, before January 1, 2005, a notice under subsection 40 (2) as it read on December 31, 2004, requiring the insured person to be assessed by a designated assessment centre.
18. The heading before section 42 and section 42 of the Regulation are revoked and the following substituted:
42. (1) For the purposes of determining if an insured person is entitled to a benefit for which an application is made or continues to be entitled to a benefit, an insurer may, as often as is reasonably necessary, require an examination under this section by one or more persons each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.
(2) Subsection (1) does not apply in respect of,
(a) a benefit that is subject to section 37.1, other than an amount claimed for ancillary goods or services to which section 37.2 applies; or
(b) a funeral benefit or death benefit.
(3) The following examinations may be limited to an examination of material related to the insured person’s condition but may also include an examination of the insured person:
1. An examination referred to in clause 37.2 (2) (b), in respect of a claim for ancillary services.
2. An examination referred to in subclause 38 (7) (b) (ii) to determine if the insured person has an impairment to which a Pre-approved Framework Guideline applies.
3. An examination referred to in clause 38.2 (7) (b) in respect of an application for approval of an examination.
(4) If an examination is required under this section, the insurer shall give the insured person a notice,
(a) that indicates the reasons why the insurer requires the examination and the person or persons who will conduct the examination;
(b) that indicates whether the examination will take the form of an examination of the insured person or of material relating to his or her condition, or both, and whether the attendance of the insured person is required at the examination; and
(c) that specifies when and where the examination will take place and the anticipated length of time required for the examination, if the attendance of the insured person is required for the examination.
(5) If a notice under subsection (4) indicates that the attendance of the insured person is not required for the examination and it is subsequently determined by the person conducting the examination that the insured person should be in attendance and personally examined, the insurer shall give a notice to the insured person not more than two days after the notice described in subsection (4) is given,
(a) notifying the insured person of the change in the form of the examination;
(b) requiring the attendance of the insured person at the examination; and
(c) stating when and where the examination will take place and the anticipated length of time required for the examination.
(6) A notice under subsection (4) or (5) may be verbal if a written confirmation is given as soon as practicable afterwards.
(7) The following procedures apply if the attendance of the insured person is required at an examination:
1. The insurer shall make reasonable efforts to schedule the examination for a time and day that are convenient for the insured person.
2. Subject to paragraph 3, the day specified for the examination must be at least five business days but not more than 10 business days after the day the insured person receives the notice requiring the attendance of the insured person at the examination, unless the insured person and the insurer mutually agree to another day for the examination.
3. The day specified for an examination referred to in subsection 40 (2) must be at least five business day but not more than 20 business days after the day the insured person receives the notice requiring the attendance of the insured person at the examination, unless the insured person and the insurer mutually agree to another day for the examination.
4. Unless the insured person otherwise consents, the examination must be conducted at a location that is not more than,
i. 30 kilometres from the insured person’s residence, if the residence is in the City of Toronto or in the Regional Municipality of Durham, Halton, Peel or York, or
ii. 50 kilometres from the insured person’s residence, if the residence is not in a municipality described in subparagraph i.
4. Despite subparagraph 3 ii, if no person with the necessary qualifications or experience to conduct the examination is available within the distance required under that subparagraph, the insurer may arrange for the examination to be conducted at a location that is reasonable in the circumstances.
(8) For the purposes of the examination,
(a) the insured person and the insurer shall provide the person or persons who conduct the examination with such information and documents as are reasonably necessary no later than five business days after receiving a notice of examination under subsection (4) or (5); and
(b) if the attendance of the insured person is required at the examination, the insured person shall submit to any reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the examination.
(9) The person or persons who conduct the examination shall prepare a report and provide a copy of the report to the insurer in accordance with the following:
1. In the case of an examination referred to in clause 37.2 (2) (b), in subclause 38 (7) (b) (ii) to determine if the insured person has an impairment to which a Pre-approved Framework Guideline applies or in clause 38.2 (7) (b) in respect of an application for approval of an examination, the report must be provided no later than five days after,
i. the day the examination started, if the attendance of the insured person was required at the examination, or
ii. the day the notice referred to in subsection (4) is given, if the attendance
of the insured person was not required at the examination.
2. In the case of an examination referred to in section 40, the report must
be provided no later than 30 days after the day the examination started.
3. In the case of an examination not referred to in paragraph 1 or 2, the
report must be provided no later than 10 days after the day the examination
started.
(10) If the examination relates to a claim for attendant care benefits, the
report shall include an assessment of attendant care needs.
19. Clause 43 (13) (a) of the Regulation is amended by striking out “in Form 1”.
20. Clauses 47 (1) (d) and (e) of the Regulation are revoked and the following substituted:
(d) if, by reason of subsection 40.1 (1), subsection 37 (4) as it read on December 31, 2004 applies, any income replacement benefit, non-earner or caregiver benefit that is paid for the period after the insurer gave notice under subsection 37 (1) as it read on that date and before the date of the report of the designated assessment centre; or
(e) fees paid by the insurer that are referred to in paragraph 6, 7 or 8 of subsection 24 (1) if the insured person fails, without a reasonable explanation, to attend a designated assessment that has been arranged, or cancels a designated assessment without providing such notice as may be specified in the Pre-assessment Cancellation Fee Schedule established by the committee referred to in section 52, as it may be amended from time to time, that he or she will not be attending the designated assessment.
21. (1) The heading before section 50 is struck out and the following substituted:
(2) Clauses 50 (1) (b) and (c) of the Regulation are revoked and the following substituted:
(b) the insured person made himself or herself reasonably available for any examination required by the insurer under section 42; and
(c) the insured person, if he or she was required to undergo a designated assessment under section 43, has undergone the designated assessment and has complied with that section.
22. Clause 52 (a) of the Regulation is revoked.
23. (1) Subsection 68 (1) of the Regulation is revoked and the following substituted:
(1) All notices required or permitted under this Regulation, other than a notice under subsection 32 (1) or (3.1), 38.2 (6) or 42 (4) or (5), shall be in writing.
(2) Section 68 of the Regulation is amended by adding the following subsections:
(2.1) For the purposes of clauses (2) (a) and (b), an authorized representative may include, subject to subsection (2.2),
(a) a member of a health profession if the document is a notice under subsection 38 (5) or (7), 38.2 (4) or (6) or 42 (4) or a report under subsection 42 (9); or
(b) a member of a health profession who is a health practitioner if the document is a notice under subsection 37.1 (4) or (5).
(2.2) Subsection (2.1) does not apply unless,
(a) the insured person is not represented at the relevant time by a solicitor or another authorized representative;
(b) the insured person gives to the insurer a signed authorization and direction specifying which documents listed in subsection (2) that the insurer is authorized and directed to give to the member of the health profession;
(c) the signed authorization and direction is given to the insurer before the document is given to the member of the health profession; and
(d) the member of the health profession has agreed to act in accordance with
the authorization and direction.
. . . . .
(13) A member of a health profession who receives a document under the authority of subsection (2.1) shall immediately notify the insured person by telephone of the substance of the document and send a copy of the document to the insured person by ordinary mail or fax.
(14) An insurer shall not deliver documents to a member of a health profession in reliance on an authorization under subsection (2.1) unless the documents are expressly specified in the authorization referred to in subsection (2.2).
24. The Regulation is amended by adding the following section:
68.1Any consent, notice or other action to be given by or to an insured person under this Regulation may be given by or to a substitute decision-maker exercising a power of decision on behalf of the insured person under the authority of the Substitute Decisions Act, 1992 or as authorized under the Health Care Consent Act, 1996.
25. (1) Paragraph 2 of section 69 of the Regulation is revoked and the following substituted:
2. A disability certificate.
2.1 A consent under section 32.1.
(2) Paragraph 4 of section 69 of the Regulation is revoked and the following substituted:
4. A notice under subsection 37.1 (5).
(3) Section 69 of the Regulation is amended by adding the following paragraphs:
6.1 A notice under subsection 38 (7).
. . . . .
7.1 A notice under subsection 38.2 (6).
7.2 A notice under section 39.
. . . . .
10.1 A notice under section 42.
26. Form 1 of the Regulation is revoked.
27. This Regulation comes into force on XX.