Justin A. Villeneuve
Lawyer - Personal Injury
Insureds involved in car accidents should have access to accident benefits, regardless of who is at fault. Amongst other things, accident benefits cover the insured’s post-collision treatment cost. They are comparable to collateral benefits you receive through work but have a distinct treatment plan and approval procedure. The treatment provider submits a treatment plan to the insurer explaining the diagnosis and appropriate course of treatment. The insurer reviews the plan and generally responds in one of three ways:
- approve the treatment plan;
- partially approve the treatment plan; or
- deny the treatment plan.
A partially approved treatment plan could mean that not all treatment outlined in the plan is “reasonable and necessary.” It could also mean that the cost of the treatment is too high. In that case, the insurer would agree to pay a portion of the proposed rate.
The Professional Services Guideline (Guideline) drafted by the Financial Services Commission of Ontario, updated in 2014, applies minimum treatment rates to certain providers:
Despite its visual practicality, the Guideline has its quirks which lead to an alarming trend in treating post-collision mental health. It starts with the lack of available treatment providers, mainly psychologists. To be paid directly by the auto insurer, psychologists or their clinics must be registered through a standard invoice procedure called Health Claims for Insurance (HCAI). Most psychologists are reluctant to do so because of payment delays, reduction in fees and extra paperwork. If you happen to find a psychologist who is registered with HCAI, the practice is often flooded with patients, leaving a wait time upwards of 8-10 months.
To get around this issue, psychologists team up with psychotherapists, counsellors or social workers to provide the needed treatment. The psychologist will run the assessment while the psychotherapist, for instance, provides the recommended treatment.
If a service provider is not included in the guideline (such as psychotherapists), it is up to the parties to decide the appropriate rate (the parties being the insurer and the treatment provider). The clinic then looks to the insured to pay the balance on the agreed rate. If the insured does not agree with the rate, it is up to him/her to dispute it. The License Appeals Tribunal (“LAT”), just dealt with one of these disputes in J.V. v Intact (Tribunal File Number: 18-07991/AABS).
J.V. v Intact (Tribunal File Number: 18-07991/AABS)
The plaintiff was in a car accident. He was diagnosed with a psychological condition resulting from the collision. The assessor, presumably a psychologist, suggested cognitive behavioural therapy (CBT). A treatment plan was submitted by a regulated psychotherapist trained to provide CBT.
Since psychotherapists are not mentioned in the guideline, it was up to the parties to decide the appropriate rate. The psychotherapist’s hourly rate for a non-insured patient was $150/hour. Her hourly rate was listed at $149.61 in the treatment plan. The insurer agreed that the treatment was reasonable and necessary but disagreed on the hourly rate. They approved the treatment plan at a rate of $99.75/hour.
Adjudicator Parish noted that psychotherapists were not governed by the guideline but refused to disentitle them from receiving the minimum hourly rates of psychologists where appropriate. She explained:
I find that based upon Ms. Barefoot’s credentials, specialized training within the area of cognitive behaviour therapy, and her experience, this warrants her being paid an hourly rate of $149.61 as noted within the Guideline for psychologists, and psychological associates. I do not agree with the respondent’s position that because she does not have all of the same training and accreditation as a psychologist or psychological associate that it disentitles her to being paid the same hourly rate noted within the Guideline that a psychologist or a psychological associate would be paid. Ms. Barefoot is providing cognitive behaviour therapy, a service she is qualified to provide. Ms. Barefoot is a registered psychotherapist who specializes in cognitive behaviour therapy and is registered with both the Canadian College of Professional Counsellors and Psychotherapists (“CCPCP”) and the College of Registered Psychotherapists of Ontario (“CRPO”). Her fee for uninsured patients is $150.00 per hour.
The adjudicator approached the issue focused on the treatment provided and the provider's credentials. She explained that both psychologists and psychotherapist may share the necessary credentials to provide specific treatment, in that case, CBT. The value of that treatment should not be lessened by the provider’s title alone.
Since being published, this decision has been mentioned by several lawyers and treatment clinics alike. The hope is that insurers will act accordingly and start to increase treatment rates to reasonable numbers. Notwithstanding, insurers continue to offer rates as low as $58.19 per hour to psychotherapists.
As stated by the insurer in JV v. Intact, "if the Guideline needs to be updated [...] it is the responsibility of the Superintendent to do so.” Since the guideline remains stagnant on the issue, there’s no statutory obligation to increase rates. The decision does nothing to force insurers to offer appropriate rates, so why would they?
There is no doubt that the decision should give confidence to those who wish to dispute the issue; however, disputing a low treatment rate has its own hurdles. Let’s explore the option to dispute with a hypothetical:
The insured gets into a car accident. He is diagnosed with PTSD and its suggested by a psychologist that he receives CBT. The insured calls every HCAI psychologist in Ottawa. The earliest appointment he can get is in 10 months. The insured is referred to a psychotherapist who is regulated and trained to provide CBT. The psychotherapist is registered with HCAI and available to start treatment within two weeks.
The psychotherapist usual rate is $150.00/hour. The treatment plan sets out that rate. The insurer responds stating that the treatment is both reasonable and necessary; however, they agree to cover the treatment at only $60.00/hour. The insurer is asked to reconsider this position. They refuse and maintain $60.00 as the appropriate hourly rate, offering the opportunity to the insured to dispute the issue.
The insured’s car accident was in July 2018. He was diagnosed in June 2018 and a treatment plan was submitted later that month at a total value of $2,000. The treatment plan was partially approved on the above terms in August 2018. Since the client cannot afford the additional $90.00 per treatment session, he goes without it and tries to deal with issues on his own while the matter gets resolved.
The insured’s lawyer applies to the LAT later in August to dispute the insurer’s position. An in-person hearing is scheduled for April 2019. The reasons for the decision returns in November 2019.
The decision of the adjudicator is to increase the rate to $149.61/hour. The insurer then applies for a reconsideration. That reconsideration is by the same adjudicator. The adjudicator reconsiders and holds the previous decision. The reasons regarding the reconsideration are returned in April 2020. The insurer then takes the matter to the Divisional Court for judicial review...
The insured is left in limbo for at least 2 years. You would think that, at the very least, the insurer would pay the insured’s legal costs in disputing the rate. But, the LAT awards only nominal costs ($500-$2000) in very limited circumstances. Notwithstanding the decision in his favour, the insured would be responsible for his legal fees.
If the fallout of disputing and obtaining a favourable decision is to have treatment delayed significantly, lawyers work and fees likely never compensated and no insurer accountability, why would anyone dispute it? I must applaud the zealous advocacy provided in J.V. v. Intact. Despite all deterrence, they and their client put the issue on paper before the LAT. Adjudicator Parish approached the issue logically and confirmed there was merit in their frustration. Unfortunately, we continue to be bound by a fractured system used to endorse low arbitrary treatment rates. Pushing the issue before the LAT will hopefully force the Superintendent to adjust the Guideline accordingly.
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