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O. Reg. 281/03: STATUTORY ACCIDENT BENEFITS SCHEDULE - ACCIDENTS ON OR AFTER NOVEMBER 1, 1996

filed July 2, 2003 under Insurance Act, R.S.O. 1990, c. I.8

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ontario Regulation 281/03

made under the

insurance act

Made: June 25, 2003
Filed: July 2, 2003
Printed in The Ontario Gazette: July 19, 2003

Amending O. Reg. 403/96

(Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996)

1. (1) The definition of “catastrophic impairment” in subsection 2 (1) of Ontario Regulation 403/96 is revoked.

(2) The definition of “health practitioner” in subsection 2 (1) of the Regulation is amended by striking out “or” at the end of clause (d) and by adding the following clauses:

(b.1) an occupational therapist, if the impairment is one that an occupational therapist is authorized by law to treat,

. . . . .

(f) a registered nurse with an extended certificate of registration, if the impairment is one that the nurse is authorized by law to treat, or

(g) a speech-language pathologist, if the impairment is one that a speech-language pathologist is authorized by law to treat;

(3) Subsection 2 (1) of the Regulation is amended by adding the following definitions:

“business day” means a day that is not,

(a) Saturday, or

(b) a holiday within the meaning of subsection 29 (1) of the Interpretation Act, other than Easter Monday and Remembrance Day; (“jour ouvrable”)

“designated assessment” means an assessment arranged or conducted by a designated assessment centre under section 43; (“évaluation désignée”)

Guideline” means,

(a) a guideline issued by the Superintendent under subsection 268.3 (1) of the Act that is published in The Ontario Gazette,

(b) a Pre-approved Framework Guideline,

(c) a guideline that is included in the professional fee guidelines, the Transportation Expense Guidelines or the Optional Indexation Benefit Guidelines, as published in The Ontario Gazette by the Ontario Insurance Commission or Financial Services Commission of Ontario,

(d) a guideline published in The Ontario Gazette that is an amended version of a guideline referred to in clause (a), (b) or (c); (“directive”)

“occupational therapist” means a person authorized by law to practise occupational therapy; (“ergothérapeute”)

Pre-approved Framework Guideline” means a guideline,

(a) that is issued by the Superintendent under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and

(b) which establishes, in respect of one or more impairments, a treatment framework; (“directive relative à un cadre de traitement préapprouvé”)

“registered nurse with an extended certificate of registration” means a person authorized by law to practise nursing who holds an extended certificate of registration under the Nursing Act, 1991; (“infirmière autorisée ou infirmier autorisé titulaire d’un certificat d’inscription supérieur”)

“speech-language pathologist” means a person authorized by law to practise speech-language pathology; (“orthophoniste”)

(4) The definition of “treatment plan” in subsection 2 (1) is revoked.

(5) Section 2 of the Regulation is amended by adding the following subsections:

(1.1) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is,

(a) paraplegia or quadriplegia;

(b) the amputation or other impairment causing the total and permanent loss of use of both arms;

(c) the amputation or other impairment causing the total and permanent loss of use of both an arm and a leg;

(d) the total loss of vision in both eyes;

(e) brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(1.2) For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 30, 2003 is,

(a) paraplegia or quadriplegia;

(b) the amputation or other impairment causing the total and permanent loss of use of both arms or both legs;

(c) the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs;

(d) the total loss of vision in both eyes;

(e) subject to subsection (1.4), brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

(f) subject to subsections (1.4), (2.1) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(g) subject to subsections (1.4), (2.1) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

(1.3) Subsection (1.4) applies if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale, the Glasgow Outcome Scale or the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in clause (1.2) (e), (f) or (g) can be applied by reason of the age of the insured person.

(1.4) For the purposes of clauses (1.2) (e), (f) and (g), an impairment sustained in an accident by an insured person described in subsection (1.3) that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (1.2) (e), (f) or (g), after taking into consideration the developmental implications of the impairment.

(6) Subsection 2 (2) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

(2) Clauses (1.1) (f) and (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs before October 1, 2003 unless,

. . . . .

(7) Section 2 of the Regulation is amended by adding the following subsection:

(2.1) Clauses (1.2) (f) and (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs after September 30, 2003 unless,

(a) the insured person’s health practitioner states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or

(b) two years have elapsed since the accident.

(8) Subsection 2 (3) of the Regulation is amended by striking out “clauses (f) and (g) of the definition of “catastrophic impairment” in subsection (1)” and substituting “clauses (1.1) (f) and (g) and (1.2) (f) and (g)”.

2. (1) Subsection 7 (1) of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:

(1) Despite subsections 6 (1) and (5), but subject to subsection 6 (2), the weekly amount of an income replacement benefit payable to a person shall be the lesser of the following amounts:

. . . . .

(2) Paragraph 1 of subsection 7 (1) of the Regulation is amended by striking out the portion before subparagraph i and substituting the following:

1. The amount determined under subsections 6 (1) and (5), reduced by,

. . . . .

(3) Subsection 7 (2) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

(2) For the purposes of paragraph 1 of subsection (1), the amount determined under subsections 6 (1) and (5) shall not be reduced by,

. . . . .

3. Subsection 14 (4) of the Regulation is revoked and the following substituted:

(4) The insurer is not liable to pay a medical benefit for expenses related to professional services described in clause (2) (a), (b) or (h) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim.

(4.1) If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purposes of subsection (4), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable to pay a medical benefit for expenses related to the services described in clause (2) (a), (b) or (h) shall not pay less than the lowest amount or rate in the range unless the insured person’s claim is for less than the lowest amount or rate in the range.

4. (1) Clause 15 (5) (k) of the Regulation is revoked and the following substituted:

(k) transportation for the insured person to and from counselling and training sessions, including transportation for an aide or attendant;

(2) Subsection 15 (6) of the Regulation is revoked and the following substituted:

(6) The insurer is not liable to pay a rehabilitation benefit for expenses related to professional services described in any of clauses (5) (a) to (g) or clause (5) (l) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim.

(6.1) If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purpose of subsection (6), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable to pay a rehabilitation benefit for expenses related to the services described in any of clauses (5) (a) to (g) or clause (5) (l) shall not pay less than the lowest amount or rate in the range unless the insured person’s claim is for less than the lowest amount or rate in the range.

(3) Subsection 15 (12) of the Regulation is amended by striking out the words “counselling session, training session or assessment” and substituting “counselling or training session”.

5. Subsection 16 (5) of the Regulation is revoked and the following substituted:

(5) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the accident occurred before October 1, 2003, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

2. If the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

3. If the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and applies to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed the monthly limit fixed for that optional benefit.

6. Section 17 of the Regulation is revoked and the following substituted:

17. (1) The insurer shall pay all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by a qualified case manager in accordance with a treatment plan if,

(a) the insured person sustains a catastrophic impairment as a result of the accident; or

(b) the accident occurred on or after October 1, 2003 and the optional medical, rehabilitation and attendant care benefit referred to in section 27 has been purchased and applies to the insured person.

(2) The insurer is not liable under subsection (1) to pay expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim.

(3) If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purpose of subsection (2), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable under subsection (1) to pay expenses related to the services rendered to the insured person shall not pay less than the lowest amount or rate in the range, unless the insured person’s claim is for less than the lowest amount or rate in the range.

7. (1) Subsections 24 (1) and (2) 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,

i. a health practitioner for preparing a disability certificate under section 34,

ii. a health practitioner for reviewing a treatment plan under section 38, and for approving it, if appropriate,

iii. a member of a health profession for preparing an application for approval of an assessment or examination under section 38.2,

iv. a member of a health profession for preparing an assessment of attendant care needs under section 39,

v. a health practitioner for preparing an application for a determination of catastrophic impairment under section 40.

2. Fees charged,

i. for a designated assessment of the insured person,

ii. by a health practitioner in accordance with a Pre-approved Framework Guideline for preparing a treatment confirmation form for the purposes of section 37.1,

iii. by a member of a health profession in accordance with a Pre-approved Framework Guideline for conducting an assessment or examination and preparing a report for the purposes of section 37.1.

3. Reasonable fees, other than fees referred to in paragraph 1 or subparagraph 2 iii, that are charged by a member of a health profession for conducting an assessment or examination and preparing a report, if the assessment or examination and the report are reasonably required in connection with a benefit claimed or the preparation of a treatment plan, disability certificate, assessment of attendant care needs in Form 1 or application for the determination of a catastrophic impairment and,

i. the assessment or examination and the preparation of the report,

A. relates to ancillary goods or services described in section 37.2, and

B. are services contemplated by a treatment confirmation form submitted in accordance with section 37.1, or

ii. the insured person submits the expense for approval under a treatment plan under section 38 or submits an application for approval of an assessment or examination under section 38.2.

(1.1) An insurer is not required to pay an expense referred to in subparagraph 3 ii of subsection (1) if the expense is incurred,

(a) before obtaining the approval of the insurer; or

(b) before a designated assessment is conducted and the report of the person or persons who conducted the designated assessment is delivered to the insured person and the insurer, in the case where an application for approval for an assessment or examination was made under section 38.2 and denied by the insurer.

(1.2) Despite subsection (1.1), the prior approval of an insurer is not required for the following:

1. An assessment or 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 assessments or examinations for the purposes of preparing a treatment plan under section 38 if,

i. the insured person has not received treatment under a Pre-approved Framework Guideline,

ii. the cost of each assessment or examination does not exceed $180.00, and

iii. not more than one assessment or examination is done by the same person.

3. Not more than one assessment or examination for the purposes of preparing a treatment plan under section 38 if,

i. the insured person has received treatment under a Pre-approved Framework Guideline,

ii. the cost of the assessment or examination does not exceed $180.00, and

iii. the person conducting the assessment or examination did not provide goods or services to the insured person under a Pre-approved Framework Guideline in respect of the same accident.

4. An assessment or examination for the purposes of preparing a disability certificate under section 34, if the cost of the assessment or examination does not exceed $180.

5. An assessment or examination for the purposes of preparing an assessment of attendant care needs under section 39, but not an assessment or 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 assessment or examination.

6. An assessment or 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 assessment or examination.

7. An assessment or examination conducted after the insurer notifies the insured person that, before the assessment or examination is conducted, the insurer does not require the submission of a treatment plan under section 38 or an application for approval of an assessment or examination under section 38.2.

8. An assessment or examination conducted under the provisions of a Guideline that authorizes the assessment or examination without the prior approval of the insurer.

(1.3) If the approval of an insurer is required and is requested with respect to an assessment or examination required for the purposes of preparing a treatment plan, the insurer shall give notice as to whether it will agree to pay for the assessment or examination,

(a) within two business days after receiving the request if the amount to be charged for the assessment is $180.00 or less; or

(b) within five business days after receiving the request if the amount to be charged is greater than $180.00.

(1.4) A notice required under subsection (1.3) may be given verbally to the insured person, to the member of the health profession who intends to perform the assessment or examination or to both of them if, as soon as practicable afterwards, written confirmation of the notice is given to the insured person and, if the notice was given verbally to the member of the health profession, to the member of the health profession.

(1.5) If an insurer fails to provide a notice required under subsection (1.3) within the time period required under that subsection, the insurer shall be deemed to have agreed to pay for the assessment or examination.

(1.6) Subject to subsection (4), the insurer shall pay reasonable expenses incurred by or on behalf of an insured person for transportation expenses incurred in transporting the insured person to and from an assessment or examination referred to in subsection (1), including transportation expenses for an aide or an attendant.

(2) The insurer is not liable under subsection (1) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines applicable to the claim.

(2.1) If the Guidelines applicable to the claim establish a range of rates or amounts for expenses related to professional services rendered to an insured person,

(a) the highest rate or amount in the range shall be deemed, for the purpose of subsection (2), to be the maximum rate or amount established under the Guidelines applicable to the claim; and

(b) an insurer that is liable to pay expenses related to the services rendered to the insured person shall not pay less than the lowest amount or rate in the range, unless the insured person’s claim is for less than the lowest amount or rate in the range.

(2) Subsection 24 (3) of the Regulation is amended by striking out “clause (1) (c)” and substituting “subsection (1.6)”.

(3) Subsection 24 (4) of the Regulation is amended by striking out “clause 1 (c)” and substituting “subsection (1.6)”.

(4) Section 24 of the Regulation is amended by adding the following subsection:

(5) Vocational assessments referred to in clause 15 (5) (f) are not assessments for the purposes of this section.

8. (1) Paragraph 3 of subsection 25 (2) of the Regulation is revoked and the following substituted:

3. If no payment is required by paragraph 1, an additional payment to the insured person’s dependants and the persons, other than a former spouse or same-sex partner of the insured person, to whom the insured person had an obligation at the time of the accident to provide support under a domestic contract or court order, to be divided equally among the persons entitled, in an amount equal to $25,000 if the accident occurred before October 1, 2003 or, if the accident occurred on or after October 1, 2003,

i. $25,000, or

ii. if the optional death and funeral benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit.

(2) Section 25 of the Regulation is amended by adding the following subsection:

(4.1) If at the time of the accident the insured person was a dependant in respect of more than one person who is entitled to a payment under this section, the payment shall be divided equally among the persons in respect of whom the insured person was a dependant.

9. (1) Paragraph 4 of subsection 27 (1) of the Regulation is revoked and the following substituted:

4. An optional death and funeral benefit that,

i. fixes the amount payable under paragraph 1 of subsection 25 (2) at $50,000, instead of the amount specified in subparagraph 1 i of subsection 25 (2),

ii. fixes the amount payable under paragraph 2 of subsection 25 (2) at $20,000, instead of the amount specified in subparagraph 2 i of subsection 25 (2),

iii. fixes the amount payable under paragraph 3 of subsection 25 (2) at $50,000 if the accident occurred on or after October 1, 2003, instead of the amount specified in subparagraph 3 i of subsection 25 (2), and

iv. fixes the maximum payment for funeral expenses at $8,000 instead of the amount specified in clause 26 (2) (a).

(2) Section 27 of the Regulation is amended by adding the following subsection:

(5) Despite paragraph 3 of subsection (1), the amount of the attendant care benefit payable in respect of an insured person relating to an accident that occurs on or after October 1, 2003 shall not exceed $6,000 per month.

10. (1) Subsection 30 (2) of the Regulation is amended by striking out “or” at the end of clause (a) and by adding the following clauses:

(c) in respect of a person who, at the time of the accident,

(i) was engaged in an act for which the person is convicted of a criminal offence, or

(ii) was an occupant of an automobile that was being used in connection with an act for which the person is convicted of a criminal offence; or

(d) in respect of a person who is convicted under section 254 of the Criminal Code (Canada) of failing to comply with a lawful demand to provide a breath sample in connection with the accident.

(2) Subsection 30 (5) of the Regulation is amended by striking out “clause (4) (a)” in the portion before the definition of “criminal offence” and substituting “this section”.

11. (1) Subsection 32 (1) of the Regulation is revoked and the following substituted:

(1) A person shall notify the insurer of his or her intention to apply for a benefit under this Regulation.

(1.1) A person shall notify the insurer under subsection (1) no later than,

(a) the 30th day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred before October 1, 2003; or

(b) the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred on or after October 1, 2003.

(2) Section 32 of the Regulation is amended by adding the following subsections:

(3.1) If an insurer receives an incomplete application for a benefit under this Regulation, the insurer shall notify the person within 14 days after receiving the incomplete application that the application is incomplete and shall indicate the information that is missing.

(3.2) Subsection (3.1) applies only if the insurer, after a reasonable review of the incomplete application, is unable to determine without the missing information if a benefit is payable.

. . . . .

(5) If subsection (3.1) applies in respect of an incomplete application, no benefit is payable before the person provides the missing information.

(6) If, in respect of an accident that occurs on or after October 1, 2003, a person fails, without a reasonable explanation, to notify an insurer under subsection (1) within the seven days set out in clause (1.1) (b), the insurer may delay determining if the person is entitled to a benefit under section 35, 38, 39 or 41 for a maximum of 45 days after the day the insurer receives the person’s application.

12. (1) Section 33 of the Regulation is amended by adding the following subsections:

(1.1) If requested by the insurer, a person who applies for a benefit under this Regulation as a result of an accident shall submit to an examination under oath, but is not required to,

(a) submit to more than one examination under oath in respect of matters relating to the same accident; or

(b) submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition.

(1.2) A person is entitled to be represented at his or her own expense at the examination under oath by such counsel or other representative of his or her choice as the law otherwise permits.

(1.3) The insurer shall make reasonable efforts to schedule the examination under oath for a time and location that are convenient for the person and shall give the person reasonable advance notice of the following:

1. The date and location of the examination.

2. That the person is entitled to be represented in the manner described in subsection (1.2).

3. The reason or reasons for the examination.

4. That the scope of the examination will be limited to matters that are relevant to the person’s entitlement to benefits.

(1.4) The insurer shall limit the scope of the examination under oath to matters that are relevant to the person’s entitlement to benefits under this Regulation.

(2) Subsection 33 (2) of the Regulation is revoked and the following substituted:

(2) The insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection (1) or (1.1).

(3) Subsection (2) does not apply in respect of a non-compliance with subsection (1.1) if,

(a) the insurer fails to comply with subsection (1.3) or (1.4); or

(b) the insurer interferes with the insured person’s right to be represented as described in subsection (1.2).

(4) If an insured person who failed to comply with subsection (1) or (1.1) subsequently complies with that subsection, the insurer,

(a) shall resume payment of the benefit, if a benefit was being paid; and

(b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for the delay in complying with the subsection.

13. Subsection 35 (3) of the Regulation is revoked and the following substituted:

(3) Despite subsection (2), the insurer may delay determining whether a person is entitled to the benefit for up to 45 days from the date the insurer receives the person’s application if the person fails, without a reasonable explanation, to notify the insurer within the 30 days required under clause 32 (1.1) (a) if the application relates to an accident that occurred before October 1, 2003.

14. Subsections 37 (3), (4) and (5) of the Regulation are revoked and the following substituted:

(3) The following rules apply if notice is given under clause (1) (b) for the reason that the person no longer has a disability that entitles the person to continue to receive the benefit:

1. The date specified in the notice under subsection (2) shall be not less than 14 days after the day the person receives the notice.

2. The notice under clause (1) (b) shall inform the person that he or she has the right to require a designated assessment in accordance with section 43 by giving the insurer written notice and a disability certificate from a health practitioner under section 34, before the date specified in the notice under subsection (2).

3. Despite subsection (2), the insurer shall not stop payment of the benefit if, within 14 days after receiving the notice under clause (1) (b), the person gives the insurer written notice that he or she requires a designated assessment in accordance with section 43 and provides the disability certificate referred to in paragraph 2.

(3.1) Subsections 34 (3) and (4) do not apply where the notice given by the insurer under clause (1) (b) contains the information described in paragraph 2 of subsection (3).

(4) The insurer may stop paying a benefit to a person, after providing the person with notice of its reasons for stopping payment, if,

(a) the person undergoes a designated assessment referred to in paragraph 3 of subsection (3); and

(b) the report from the designated assessment centre states that the person no longer has a disability that entitles the person to receive the benefit.

(5) The insurer may dispute the obligation to pay a benefit in accordance with sections 279 to 283 of the Act and, pending the resolution of the dispute, the insurer shall pay the benefit if,

(a) the person undergoes a designated assessment referred to in paragraph 3 of subsection (3); and

(b) the report from the designated assessment centre states that the person continues to have a disability that entitles the person to receive the benefit.

15. The Regulation is amended by adding the following sections:

Pre-approved Framework Guidelines

37.1 (1) This section applies if an insured person,

(a) submits or intends to submit an application for a benefit in accordance with section 32; and

(b) claims medical or rehabilitation benefits in respect of an impairment that comes within a Pre-approved Framework Guideline.

(2) The insured person shall submit to the insurer, within the time specified in the Pre-approved Framework Guideline applicable to the impairment, a treatment confirmation form that satisfies the following requirements:

1. The treatment confirmation form shall be prepared by a health practitioner who is authorized by law to treat the impairment that is the subject of the form and who will be the health practitioner responsible for providing goods and services under the treatment confirmation form.

2. The treatment confirmation form shall contain details concerning the impairment and specify the Pre-approved Framework Guideline under which benefits are claimed.

3. The treatment confirmation form shall include a statement by the health practitioner who prepared the form,

i. disclosing any conflict of interest that he or she has that relates to the goods or services to be provided under the Pre-approved Framework Guideline,

ii. confirming that he or she has made reasonable inquiries to determine if any person who referred the insured person to a person who will provide goods or services under the Pre-approved Framework Guideline has a conflict of interest relating to the treatment, and

iii. disclosing any conflict of interest that a person who referred the insured person to a person who will provide goods or services under the Pre-approved Framework Guideline has that relates to the treatment.

4. The treatment confirmation form shall be signed by the insured person, unless the insurer waives this requirement.

(3) A lawyer or other representative who acts for the insured person in respect of the application for a benefit or in respect of any civil proceeding arising from the accident shall, at the time the treatment confirmation form is submitted, give the insurer and the insured person written notice disclosing any conflict of interest that the lawyer or representative has relating to the claim for benefits.

(4) If a conflict of interest is disclosed in the treatment confirmation form or by a person under subsection (3), the insurer may refuse the application.

(5) Within five business days after receiving a treatment confirmation form, the insurer shall send a notice that complies with the following rules to the insured person and to the health practitioner, acknowledging receipt of the treatment confirmation form:

1. The notice shall state whether the policy referred to in the treatment confirmation form was in force at the time of the accident.

2. If the insurer refuses the application by reason of a conflict of interest, the notice shall state the reason the application is refused, what the conflict of interest is and that the insured person may submit a new application.

3. If the treatment confirmation form includes a claim for ancillary goods or services referred to in section 37.2, the notice shall comply also with the requirements of that section.

(6) 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 provide the goods or services to which the conflict of interest relates.

(7) If an insured person submits an application under section 32 and a treatment confirmation form under this section in respect of an impairment and the claim is accepted by the insurer, the insurer is liable to pay benefits of a type described in section 14 or 15 in respect of the impairment only in accordance with,

(a) the Pre-approved Framework Guideline to which the treatment confirmation form relates; and

(b) the requirements of section 37.2, if that section applies in respect of the claim.

(8) If the insured person has submitted an application under section 32 to the insurer, the insurer shall pay a benefit referred to in subsection (7) within 30 days after  receiving an invoice for goods or services,

(a) that have been provided under the Pre-approved Framework Guideline to which the treatment confirmation form relates; or

(b) that the insurer has agreed under section 37.2 to pay for and that have been provided.

(9) An insurer is not liable to pay benefits under more than one treatment confirmation form relating to the same Pre-approved Framework Guideline.

(10) An insured person may receive benefits under two or more Pre-approved Framework Guidelines if permitted under the Guidelines.

(11) An insured person shall submit an amended treatment confirmation form if, during the course of treatment under a Pre-approved Framework Guideline, he or she changes the health practitioner who is responsible for providing goods and services under the treatment confirmation form.

(12) The insurer is liable to pay for goods and services under an amended treatment confirmation form only to the extent the goods and services have not already been provided under the Pre-approved Framework Guideline.

(13) Sections 42 and 43 do not apply to a claim for payment for goods and services provided under a Pre-approved Framework Guideline.

(14) If goods or services available under a Pre-approved Framework Guideline are not provided within the times specified in the applicable Guideline, any claim for medical or rehabilitation benefits to which the Guideline would otherwise apply shall, subject to section 37.2, be submitted in accordance with section 38.

(15) If a court or arbitrator determines in any dispute about an insured person’s entitlement to medical or rehabilitation benefits or related assessments or examinations that a Pre-approved Framework Guideline applies to the insured person and the insured person received benefits or underwent assessments or examinations under the Pre-approved Framework Guideline,

(a) the benefits shall be deemed to have been reasonable and necessary for the purposes of sections 14 and 15; and

(b) the assessments and examinations shall be deemed to have been reasonably required for the purposes of section 24.

37.2 (1) In this section, ancillary goods or services, in respect of an impairment to which a Pre-approved Framework Guideline applies, are goods or services for which the Guideline,

(a) requires the insurer’s approval; and

(b) permits a claim to be made in a treatment confirmation form under section 37.1.

(2) If a treatment confirmation form under section 37.1 includes a claim for ancillary goods or services, the following rules apply:

1. If the insurer does not agree to pay for all of the ancillary goods and services claimed in the treatment confirmation form, the insurer shall require the insured person to be assessed by a designated assessment centre in accordance with section 43 in respect of the ancillary goods and services the insurer will not pay for.

2. The notice given by the insurer under subsection 37.1 (5) shall state,

i. what ancillary goods and services, if any, that the insurer will pay for,

ii. what ancillary goods and services the insurer will not pay for and the reasons why the insurer will not pay for them, and

iii. that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43 in respect of the ancillary goods and services the insurer will not pay for.

(3) Despite subsection (2), no designated assessment is required if, within two business days after receiving the notice referred to in that subsection, the insured person gives the insurer written notice that he or she will not make any claim in respect of the goods and services for which the insurer has indicated it will not pay.

(4) If the insurer fails, within the time required under subsection 37.1 (5), to comply with the requirements of paragraph 2 of subsection (2) or fails to give the notice under subsection 37.1 (5), the insurer shall pay for all ancillary goods and services delivered under the treatment confirmation form.

(5) The following rules apply in respect of an expense for or relating to an ancillary good or service, subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Act:

1. If a report from a designated assessment centre states that, in the opinion of the person or persons who conducted the designated assessment, the expense is reasonable and necessary for the insured person’s treatment or rehabilitation, the insurer shall pay the expense.

2. If a report from a designated assessment centre does not state that, in the opinion of the person or persons who conducted the designated assessment, the expense is reasonable and necessary for the insured person’s treatment or rehabilitation, the insurer is not required to pay the expense.

3. If a report from a designated assessment centre states that, in the opinion of the person or persons who conducted the designated assessment, the expense in respect of an assessment or examination is reasonably required in relation to the benefit claimed, the insurer shall pay the expense.

4. If a report from a designated assessment centre does not state that, in the opinion of the person or persons who conducted the designated assessment, an expense in respect of an assessment or examination is reasonably required in relation to the benefit claimed, the insurer is not required to pay the expense.

16. (1) Subsection 38 (1) of the Regulation is revoked and the following substituted:

(1) Subject to subsection (2.1), this section applies to,

(a) any claim for medical or rehabilitation benefits other than,

(i) a claim payable under section 37.1, and

(ii) a claim for ancillary goods and services referred to in section 37.2; and

(b) applications for assessments or examinations under subparagraph 3 ii of subsection 24 (1) that are submitted with a treatment plan under subsection (2).

(1.1) An insured person shall submit an application for a medical or rehabilitation benefit to the insurer before incurring any expense in respect of the benefit or an assessment or examination to which this section applies.

(2) Subsection 38 (2) of the Regulation  is revoked and the following substituted:

(2) An application under this section must be signed by the insured person, unless the insurer waives that requirement, and must include, unless section 38.1 applies,

(a) a treatment plan prepared by a member of a health profession; 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.

(2.1) An insurer may refuse to accept a treatment plan under this section that provides for goods or services to be received in respect of any period during which the insured person is entitled to receive goods or services under a Pre-approved Framework Guideline, unless the Guideline allows the insured person to receive both, and the insurer’s refusal is final and not subject to review.

(2.2) Nothing in subsection (2.1) prevents an insured person, while receiving goods or services under a Pre-approved Framework Guideline, from submitting a treatment plan applicable to a period other than the period referred to in that subsection.

(3) Section 38 of the Regulation is amended by adding the following subsection:

(3.1) Despite subsections (1.1), (2) and (3), if an insured person incurs expenses in respect of which a medical or rehabilitation benefit may be payable, other than for expenses payable under a Pre-approved Framework Guideline, without complying with subsection (1.1), (2) or (3), the insured person shall submit to the insurer an application for payment of the expenses that complies with subsections (2) and (3) within 30 days after incurring the expenses.

(4) Subsection 38 (8) of the Regulation is revoked and the following substituted:

(8) If no notice is given under subsection (5), the insurer shall give the insured person one of the following notices:

1. A notice disclosing if the insurer has a conflict of interest relating to the treatment plan and stating,

i. what goods and services, if any, contemplated by the treatment plan that the insurer will pay for, and

ii. what goods and services, if any, contemplated by the treatment plan that the insurer will not pay for.

2. A notice stating that the insurer rejects the treatment plan on the basis that the insured person has an impairment to which a Pre-approved Framework Guideline applies.

(8.1) A notice under subsection (8) must be given,

(a) within 14 days after the insurer receives the application, in the case of a notice described in paragraph 1 of subsection (8); or

(b) within five business days after the insurer receives the application, in the case of a notice described in paragraph 2 of subsection (8).

(8.2) If the insurer fails to give a notice under subsection (8) in accordance with subsection (8.1), the following rules apply:

1. In the case of a notice under paragraph 2 of subsection (8),

i. the insurer cannot reject the treatment plan on the basis that the insured person has an impairment to which a Pre-approved Framework Guideline applies, and

ii. the insurer shall give a notice described in paragraph 1 of subsection (8) in accordance with subsection (8.1).

2. In the case of a notice under paragraph 1 of subsection (8) or a notice required under that paragraph by reason of subparagraph 1 ii of this subsection, the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting the day after the day the insurer was required to give the notice and ending on the day the insurer gives the notice.

(5) Subsection 38 (9) of the Regulation is amended by striking out “clause (8) (b)” and substituting “paragraph 1 of subsection (8)”.

(6) Subsections 38 (11) and (12) of the Regulation are revoked and the following substituted:

(11) If the application is not withdrawn under subsection (9), the insurer shall pay for goods and services the insurer agreed to pay for in the notice under paragraph 1 of subsection (8) within 30 days after receiving an invoice for them.

(12) If the notice under paragraph 1 of subsection (8) does not indicate that the insurer will pay for all the goods and services contemplated by the treatment plan,

(a) the insurer shall require the insured person to be assessed by a designated assessment centre in accordance with section 43 in respect of the goods and services the insurer will not pay for; and

(b) the insurer shall include in the notice under paragraph 1 of subsection (8),

(i) a statement of the insurer’s reasons for not agreeing to pay for all goods and services contemplated by the treatment plan, and

(ii) notice that the insurer requires the insured person to be assessed by a designated assessment centre in accordance with section 43.

(12.1) If an insurer gives a notice described in paragraph 2 of subsection (8),

(a) the insurer shall require the insured person to be assessed in respect of the goods and services by a designated assessment centre; and

(b) the insurer shall include in the notice,

(i) a statement specifying the Pre-approved Framework Guideline applicable to the insured person, and

(ii) notice that the insurer requires the insured person to be assessed by a designated assessment centre.

(12.2) If an insurer  gives notice described in paragraph 2 of subsection (8), 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 referred to in subclause (12.1) (b) (i), pending the determination of the designated assessment referred to in subclause (12.1) (b) (ii).

(12.3) If appropriate, the treatment confirmation form referred to in subsection (12.2) may include a claim for ancillary goods and services under section 37.2.

(7) Subsections 38 (13) and (14) of the Regulation are revoked and the following substituted:

(13) Despite clause (12) (a), no designated assessment shall be required if, within five business days after receiving the notice under subclause (12) (b) (ii), the insured person gives the insurer written notice that he or she will not make any claim in respect of the goods or services that the insurer has stated it will not pay for.

(14) The following rules apply in respect of an expense for or relating to goods or services the insurer has not agreed to pay for, subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Act:

1. If a report from the designated assessment centre states that, in the opinion of the person or persons who conducted the designated assessment, an expense claimed under section 14 or 15 is reasonable and necessary for the insured person’s treatment or rehabilitation, or in the case of an assessment or examination under subparagraph 3 ii of subsection 24 (1), that the expense is reasonably required in relation to the benefit claimed, the insurer shall pay the expense.

2. If a report from the designated assessment centre does not state that, in the opinion of the person or persons who conducted the designated assessment, an expense claimed under section 14 or 15 is reasonable and necessary for the insured person's treatment or rehabilitation, or in the case of an assessment or examination under subparagraph 3 ii of subsection 24 (1), that the expense is reasonably required in relation to the benefit claimed, the insurer is not required to pay the expense.

3. If a report from the designated assessment centre states that, in the opinion of the person or persons who conducted the designated assessment, the insured person has an impairment to which a Pre-approved Framework Guideline applies, the insurer may reject the treatment plan and may treat the application for benefits as an application under section 37.1.

4. If a report from the designated assessment centre states that, in the opinion of the person or persons who conducted the designated assessment, the insured person does not have an impairment to which a Pre-approved Framework Guideline applies, the insurer shall give the insured person a notice described in paragraph 1 of subsection (8).

(8) Subsection 38 (15) of the Regulation is amended by striking out “an assessment by a designated assessment centre” in the portion before paragraph 1 and substituting “a designated assessment”.

(9) Paragraphs 3 and 4 of subsection 38 (15) of the Regulation are revoked and the following substituted:

3. Expenses for transportation to or from counselling sessions, training sessions, or treatment sessions, including transportation for an aide or attendant.

4. Labour market re-entry expenses payable by the insurer until a dispute over whether a benefit is payable under the Workplace Safety and Insurance Act, 1997 is resolved.

(10) Subsections 38 (16) and (17) of the Regulation are revoked.

(11) Subsection 38 (18) of the Regulation is amended by striking out the portion before clause (a) and substituting:

(18) Despite subsection (1.1), if the insurer receives an application described in subsection (3.1), the insurer shall, within 30 days after receiving the application,

. . . . .

(12) Subsection 38 (19) of the Regulation is amended by striking out “subclause (8) (a) (i) or (ii)” and substituting “subparagraph 1 i of subsection (8)”.

(13) Subsections 38 (22) to (25) of the Regulation are revoked.

17. The Regulation is amended by adding the following sections:

38.1 (1) This section applies to a claim for a medical or rehabilitation benefit under section 38 if the insurer gives the insured person a notice informing the insured person that the insurer will pay the expenses without the submission of a treatment plan under that section.

(2) If the insurer gives the insured person a notice under subsection (1),

(a) the notice shall describe the expenses that the insurer will pay without the submission of a treatment plan and shall specify,

(i) the types of expenses,

(ii) any restrictions on the amount of the expenses, and

(iii) any restrictions on when the expenses may be incurred;

(b) the insurer shall pay expenses described in the notice within 30 days after receiving an invoice for them; and

(c) if there is a dispute about whether, for the purpose of subsection 14 (2) or 15 (5), an expense described in the notice is reasonable or necessary, the insurer shall pay the expense pending resolution of the dispute in accordance with sections 279 to 283 of the Act.

(3) The insurer shall give the insured person a notice disclosing any conflict of interest that the insurer has relating to any person who will provide goods or services to whom the insured person is referred by the insurer.

(4) Every member of a health profession who refers an insured person to a person who will provide goods or services in respect of which a medical or rehabilitation benefit will be paid by an insurer under this section shall give the insurer and the insured person written notice disclosing any conflict of interest that the member of the health profession has relating to the goods or services.

(5) If a conflict of interest is disclosed under subsection (4), 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 relieved of any obligation under this section to pay expenses other than expenses incurred before the notice was given;

(b) subsections (1) to (4) do not apply; and

(c) the insured person may submit an application and treatment plan under section 38.

Assessments and Examinations

38.2 (1) This section applies to an application for approval of an assessment or examination referred to in subparagraph 3 ii of subsection 24 (1), unless the application is submitted with a treatment plan under section 38.

(2) The application shall include a statement by the member of a health profession who is to conduct the assessment or examination,

(a) disclosing any conflict of interest that he or she has relating to the assessment or examination to which the application relates;

(b) indicating that he or she has made reasonable inquiries to determine whether any person who referred the insured person to him or her has a conflict of interest relating to the assessment or examination and, if there is a conflict of interest, disclosing the conflict of interest that the person has; and

(c) stating that the assessment or examination is reasonably required in relation to a benefit.

(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 written 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 the 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 assessment or examination.

(6) If the insurer has not refused the application under subsection (4), the insurer shall, within the applicable time period under subsection 24 (1.3), determine whether the insurer is required to pay for any assessment or examination to which the application relates and shall give the insured person a notice,

(a) stating which assessments or examinations in the application that the insurer will or will not pay for;

(b) specifying the insurer’s reasons for not agreeing to pay for any assessment or examination to which the application relates;

(c) requiring the insured person to be assessed by a designated assessment centre in accordance with section 43, if the insurer states in the notice that it will not pay for an assessment or examination to which the application relates; and

(d) disclosing any conflict of interest that the insurer has relating to any assessment or examination to which the application relates.

(7) If the insurer determines that it is not required to pay for any assessment or examination to which the application relates, the insurer shall require the insured person to be assessed in respect of the requirement for the assessment or examination by a designated assessment centre in accordance with section 43.

(8) Despite clause (6) (c) and subsection (7), no designated assessment shall be required in respect of an assessment or examination that the insurer has stated it will not pay for if, within two business days after receiving the notice under subsection (6), the insured person gives the insurer written notice that he or she will not make any claim in respect of the assessment or examination.

(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 assessments and examinations to which the application relates.

(10) If, in a notice under subsection (6), the insurer discloses a conflict of interest relating to an assessment or examination, 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 assessment or examination.

(12) If the application is not withdrawn under subsection (10), the insurer shall pay for all assessments and examinations it agreed to pay for in the notice under subsection (6) and shall make each payment within 30 days after receiving an invoice for the cost of the assessment or examination.

(13) The following rules apply in respect of an assessment or examination that the insurer has not agreed to pay for, subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Act:

1. If a report from a designated assessment centre states that, in the opinion of the person or persons who conducted the designated assessment, the assessment or examination to which the application relates is reasonably required in relation to the benefit claimed, the insurer shall pay for the assessment or examination.

2. If a report from a designated assessment centre does not state that, in the opinion of the person or persons who conducted the designated assessment, the assessment or examination is reasonably required in relation to the benefit claimed, the insurer is not required to pay for the assessment or examination.

(14) If, after giving a notice under subsection (6) in which the insurer agrees to pay for an assessment or 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 assessment or 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.

(15) If the insured person does not amend the application as required under subsection (14), the insurer is not required to pay for the assessment or examination referred to in that subsection.

(16) Subsection (14) does not apply if there is no other person within 50 kilometres of the insured person’s residence who is able to conduct the assessment or examination to which the conflict of interest relates.

Conflict of Interest

38.3 (1) For the purposes of sections 37.1, 38, 38.1 and 38.2,

(a) a person has a conflict of interest relating to the provision of goods or services if,

(i) the person or a related person may receive a financial benefit, directly or indirectly, as a result of the provision, by the related person or another person, of the goods or services, and

(ii) the person who may receive the financial benefit is not the employee of the person who will provide the goods or services and does not have a contract with the person who will provide the goods or services or under which goods or services of that kind are provided; and

(b) an insurer has a conflict of interest relating to the provision of goods or services to an insured person if the insurer may receive a financial benefit, directly or indirectly, as a result of the provision of the goods or services.

(2) A related person, in respect of a person who is not a corporation, is an individual who is,

(a) the spouse or same-sex partner of the person;

(b) connected with the person by blood relationship or adoption; or

(c) connected by blood relationship to the spouse or same-sex partner of the person.

(3) For the purposes of subsection (2),

(a) persons are connected by blood relationship if one is the child or other descendant of the other or is the brother or sister of the other; and

(b) persons are connected by adoption if one has been adopted, either legally or in fact, as the child of the other or as a child of a person who is connected by blood relationship, otherwise than as brother or sister, to the other.

18. (1) Clause 39 (1) (b) of the Regulation is revoked and the following substituted:

(b) give the insured person notice that the insurer requires the insured person to furnish an assessment of attendant care needs in Form 1 prepared by a member of a health profession who is authorized by law to treat the person’s impairment.

(2) Subsection 39 (2) of the Regulation is amended by striking out “a certificate” and substituting “an assessment of attendant care needs”.

(3) Subsections 39 (3), (4) and (5) of the Regulation are revoked and the following substituted:

(3) If the insurer is required to pay the benefit, it shall begin payment of the benefit within 30 days after receiving the application or, if the insurer has required an assessment of attendant care needs in Form 1, within 14 days after receiving Form 1.

(4) If the insurer determines that an insured person is not entitled to receive an attendant care benefit, the insurer shall require the person to undergo a designated assessment in accordance with section 43 and shall give the person notice of its determination and the requirement for the designated assessment, with reasons,

(a) within 14 days after receiving the application; or

(b) within 14 days after receiving the assessment of attendant care needs in Form 1, if the insurer required an assessment of attendant care needs under this section.

(4) Subsection 39 (6) of the Regulation is amended by striking out “an assessment” and substituting the words “a designated assessment”.

(5) Subsections 39 (7) and (8) of the Regulation are revoked and the following substituted:

(7) If an insured person is receiving an attendant care benefit and the insurer determines that the person is no longer entitled to receive the benefit or that the amount of the benefit should be reduced, the insurer shall require the person to undergo a designated assessment in accordance with section 43 and shall give the person notice of its determination and the requirement for the designated assessment, with reasons, no later than the date the next payment of the benefit is due.

(8) If an insured person who is receiving an attendant care benefit submits an application to the insurer to increase the amount of the benefit, and the insurer determines that the person is not entitled to receive an increased amount, the insurer shall require the person to undergo a designated assessment in accordance with section 43 and shall give the person notice of its determination and the requirement for the designated assessment, with reasons, within 14 days after the application is received.

(9) If a designated assessment is required under subsection (7) or (8), the insurer shall, pending receipt of the report of the designated assessment centre, continue to pay the insured person the attendant care benefit in the amount that was being paid before the notice under that subsection was given.

(10) The determination by the designated assessment centre is binding on the insured person and the insurer in respect of the attendant care benefit, subject to the determination of a dispute in accordance with sections 279 to 283 of the Act.

(11) Despite subsections (7) and (8), if more than 104 weeks have elapsed since the accident, the insurer shall not require a designated assessment of the insured person and the insured person shall not submit an application to the insurer to increase the amount of the benefit unless at least 52 weeks have elapsed since the insured person was last assessed by a designated assessment centre.

(12) The insured person and the insurer may agree at any time that the insured person be assessed in accordance with section 43.

(13) If the insurer determines that, pursuant to subsection 18 (2), a person is not entitled to receive an attendant care benefit,

(a) subsections (4), (7),  (8) and (11) do not apply; and

(b) if the insurer has been paying an attendant care benefit to the person, the insurer shall not stop payment of the benefit unless it gives the person notice of its determination, with reasons, at least 14 days before the last payment of the benefit.

19. Section 40 of the Regulation is amended by adding the following subsection:

(3.1) Despite clause 19 (2) (a), if an application under subsection (1) is made within 104 weeks after the accident and a designated assessment is required under this section, the insurer shall continue to pay the insured person the attendant care benefit in the amount that was being paid before the notice under clause (2) (c) or subsection (3) was given, pending receipt of the report from the designated assessment centre.

20. (1) Subsection 42 (1) of the Regulation is revoked and the following substituted:

(1) For the purpose of determining whether an insured person is entitled to a benefit for which an application is made, an insurer may give the insured person notice requiring the insured person to be examined by one or more persons specified by the insurer, each of whom is a member of a health profession or a person with expertise in vocational rehabilitation.

(1.1) Subsection (1) does not apply in respect of an application,

(a) for a benefit that is subject to section 37.1 or 37.2;

(b) for a funeral benefit or death benefit; or

(c) for a medical or rehabilitation benefit under section 14 or 15 unless the claim for the benefit is the subject of proceedings under sections 279 to 284 of the Act.

(2) Subsection 42 (2) of the Regulation is revoked and the following substituted:

(2) The notice shall state the reasons why the insurer requires the examination and shall specify a date for the examination that is at least five business days after the person receives the notice.

(3) Subsection 42 (4) of the Regulation is revoked and the following substituted:

(4) The insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person.

(4) Subsection 42 (7) of the Regulation is amended by striking out “seven days” and substituting “five business days”.

(5) Clauses 42 (8) (a) and (b) of the Regulation are revoked and the following substituted:

(a) the insurer may stop payment of the benefit related to the examination until the person submits to the examination or complies with subsection (5); and

(b) no benefit is payable for the period after the person has failed to attend the examination or failed to comply with subsection (5) and before the insured person submits to an examination under subsection (1) and complies with subsection (5).

(6) Section 42 is amended by adding the following subsections:

(9) If a person subsequently submits to an examination under subsection (1) or complies with subsection (5), the insurer,

(a) shall resume payment of the benefit; and

(b) shall pay all amounts 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 (5).

(10) No person who is member of a health profession or who has expertise in vocational rehabilitation shall examine an insured person on behalf of an insurer for the purposes of determining whether an insured person is entitled to a benefit except in accordance with this section.

21. The heading before section 43 and section 43 of the Regulation are revoked and the following substituted:

Designated Assessments

43. (1) The following rules apply if a designated assessment is required under this Regulation:

1. The insurer shall notify the designated assessment centre within five business days.

2. The insured person and the insurer shall provide the person or persons who will conduct the designated assessment with such information as is reasonably necessary, within the same period of five business days referred to in paragraph 1.

3. The designated assessment centre shall promptly notify the insured person and arrange for the designated assessment.

4. The insured person shall submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons who conduct the designated assessment.

(2) The following rules apply if an insured person does not submit to a designated assessment arranged under subsection (1) or fails to comply with paragraph 2 or 4 of subsection (1):

1. The insurer may stop payment of the benefit related to the designated assessment until the insured person submits to the designated assessment and complies with paragraphs 2 and 4 of subsection (1).

2. No benefit is payable for the period after the insured person fails to submit to the designated assessment or fails to comply with paragraph 2 or 4 of subsection (1) and before the insured person subsequently submits to an examination under subsection (1) and complies with paragraphs 2 and 4 of subsection (1).

(3) If an insured person subsequently submits to a designated assessment and is in compliance with paragraphs 2 and 4 of subsection (1), the insurer,

(a) shall resume payment of the benefit; and

(b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for not submitting to the designated assessment or not complying with paragraph 2 or 4 of subsection (1), as the case may be.

(4) After conducting the designated assessment, the person or persons who conducted the designated assessment shall prepare a report and provide a copy of the report to,

(a) the insurer;

(b) the insured person; and

(c) the insured person’s health practitioner.

(5) Subject to subsection (11), the designated assessment centre shall deliver the report within 14 days after the completion of the designated assessment.

(6) If the designated assessment is required under section 37 in respect of a claim for an income replacement, non-earner or caregiver benefit, the report of the designated assessment shall include a statement as to whether the insured person continues to have a disability that entitles the insured person to continue to receive the benefit.

(7) If the designated assessment is required under section 37.2, the report of the designated assessment shall state whether the ancillary goods and services claimed in the treatment confirmation form are reasonable and necessary.

(8) If the designated assessment is required under section 38, the report of the designated assessment shall,

(a) state whether the goods or services to be provided under the treatment plan are reasonable and necessary and shall include recommendations relating to the future provision of goods and services to the insured person for his or her treatment and rehabilitation, if the purpose of the designated assessment is to determine if the goods and services are reasonable and necessary; and

(b) state whether the impairment comes within a Pre-approved Framework Guideline, if the purpose of the designated assessment is to determine if the insured person has an impairment to which a Pre-approved Framework Guideline applies.

(9) In the case of a designated assessment described in clause (8) (b), the report of the designated assessment centre shall also state whether the goods or services to be provided under the treatment plan are reasonable and necessary and shall include recommendations relating to the future provision of goods and services to the insured person for his or her treatment and rehabilitation, if the report states that the impairment does not come within a Pre-approved Framework Guideline.

(10) If the designated assessment is required under section 38.2, the report of the designated assessment shall state whether an expense in respect of an assessment or examination is payable under section 24.

(11) Despite subsection 53 (9), if the designated assessment is conducted to determine whether there are medical or rehabilitation benefits payable otherwise than under a Pre-approved Framework Guideline or the designated assessment is required under section 38.2, the designated assessment centre shall deliver its report to the insured person and the insurer within five business days after the later of,

(a) the day it receives the information required to be provided under paragraph 2 of subsection (1); or

(b) the day any conflict of interest disclosed by the designated assessment centre under section 53 in respect of the designated assessment is resolved under that section.

(12) If an insurer fails to give a notice required under subsection (1) in accordance with that subsection, the insurer shall pay for the goods and services that are the subject of the designated assessment and that relate to the period commencing on the day the insurer was required to give the notice and ending on the day the insurer gives the notice.

(13) If the designated assessment is required under section 39 in respect of a claim for an attendant care benefit, the report shall include,

(a) an assessment of attendant care needs in Form 1; and

(b) recommendations on the future provision of attendant care services to the insured person.

(14) If the designated assessment is required under section 40 to determine whether an impairment is a catastrophic impairment, the report shall include a statement of whether, in the opinion of the person or persons who conducted the designated assessment, the impairment is a catastrophic impairment.

22. Subsection 47 (1) of the Regulation is amended by striking out “or” at the end of clause (b) and by adding the following clauses:

(d) if subsection 37 (4) applies, any income replacement benefit, non-earner or caregiver benefit that is paid for the period after the insurer gives notice under subsection 37 (1) and before the date of the report of the designated assessment centre referred to in subsection 37 (4); or

(e) fees paid by the insurer under paragraph 2 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.

23. Section 49 of the Regulation is revoked and the following substituted:

49. If an insurer refuses to pay a benefit under this Regulation or reduces the amount of a benefit that a person is receiving under this Regulation, the insurer shall provide the person with a written notice concerning the person’s right to dispute.

24. Section 50 of the Regulation is revoked and the following substituted:

50. (1) An insured person shall not commence a mediation proceeding under section 280 of the Act unless,

(a) the insured person notified the insurer of the circumstances giving rise to a claim for a benefit and submitted an application for the benefit within the times prescribed by this Part;

(b) the insured person made himself or herself reasonably available for any examination required by the insurer under section 42, other than in relation to a medical or rehabilitation benefit under section 14 or 15; and

(c) the insured person has undergone any required designated assessment under section 43 and has complied with that section in respect of the designated assessment.

(2) Despite clause (1) (b), an insured person who does not attend an examination that has been scheduled shall not be considered to have made himself or herself reasonably available for the examination unless, before applying for mediation, the person attends a rescheduled appointment for the examination, if required by the insurer.

25. The Regulation is amended by adding the following sections:

52.1 The committee referred to in section 52 may suspend, revoke or modify a designation under section 52, subject to such terms and conditions as the committee specifies.

52.2 (1) When required by the committee referred to in section 52, every designated assessment centre shall provide the Superintendent with such information respecting the performance of its functions as the committee may require.

(2) Information required under subsection (1) shall be provided at such times and in such manner as the committee may determine and direct.

(3) The Superintendent shall review the information compiled under subsection (1) and may take such action in respect of the information as the Superintendent considers appropriate.

(4) If a designated assessment centre fails to comply with a request for information under subsection (1), the Superintendent may report the deficiency to the committee referred to in section 52.

26. The heading before section 53 and section 53 of the Regulation are revoked and the following substituted:

Designated Assessment Centres

53. (1) A designated assessment shall be conducted by the designated assessment centre nearest to the insured person’s residence that,

(a) is authorized to assess impairments of the type sustained by the insured person; and

(b) is authorized to conduct the type of designated assessment that is required.

(2) Before conducting a designated assessment, a designated assessment centre shall give the insurer and the insured person written notice disclosing any conflict of interest that the centre has relating to the designated assessment.

(3) The designated assessment centre shall give any notice required under subsection (2) in respect of a designated assessment described in subsection 43 (11) within three business days after receipt of the request for the designated assessment.

(4) If a conflict of interest is disclosed under subsection (2),

(a) the designated assessment centre shall conduct the designated assessment if the insurer and the insured person agree; or

(b) if the insurer and the insured person do not agree, the designated assessment shall be conducted, subject to subsection (2), by the designated assessment centre next nearest to the insured person’s residence that,

(i) is authorized to assess impairments of the type sustained by the insured person, and

(ii) is authorized to conduct the type of designated assessment that is required.

(5) For the purposes of clause (4) (b), the insurer and the insured person shall be deemed not to agree in the case of a designated assessment described in subsection 43 (11) unless they agree by the end of the third business day after the day the insurer receives the notice under subsection (2) or the insured person receives the notice under subsection (2), whichever day is later.

(6) If the designated assessment centre determined in accordance with subsection (1) or clause (4) (b) is more than 100 kilometres from the insured person’s residence, the insurer and the insured person shall endeavour to agree on one or more persons, at least one of whom is a health practitioner, who will conduct the designated assessment.

(7) If the insurer and the insured person cannot agree under subsection (6), the insured person shall be assessed at the designated assessment centre determined in accordance with subsection (1) or clause (4) (b), as the case may be.

(8) Subsections (6) and (7) do not apply to a designated assessment required under section 39 or 40 or to a designated assessment described in subsection 43 (11).

(9) Except as otherwise required under subsection 43 (11), a designated assessment centre must begin a designated assessment within 14 days after receiving a request for the designated assessment.

(10) If a designated assessment centre is unable to begin a designated assessment within 14 days after receiving the request for the assessment, the insured person or the insurer may require that, subject to subsection (2), the designated assessment be conducted by the designated assessment centre next nearest to the insured person’s residence that,

(a) is authorized to assess impairments of the type sustained by the insured person; and

(b) is authorized to conduct the type of designated assessment that is required.

(11) For the purpose of this section, a designated assessment centre has a conflict of interest relating to a designated assessment if,

(a) the insurer, the insured person or a lawyer or other representative acting on behalf of the insurer or the insured person has a financial interest in the designated assessment centre; or

(b) the designated assessment centre, a related person, an assessor or consultant who will carry out all or part of the designated assessment or a facility owned or controlled, directly or indirectly, in whole or in part, by the centre or a related person,

(i) has provided goods or services to the person to be assessed, other than a previous designated assessment,

(ii) prepared or approved a treatment confirmation form under section 37.1, a treatment plan under section 38 or an application for approval of an assessment or examination under section 38.2 for the person to be assessed, or

(iii) is identified by a treatment confirmation form, treatment plan or an application for approval of an assessment or examination as a person who will provide goods or services to the person to be assessed.

(12) In clause (11) (b),

“related person” means, in respect of a designated assessment centre, an owner, partner or another person who has a financial interest in the designated assessment centre, but does not include a person who has a financial interest in the designated assessment centre by reason only of being a creditor who deals at arm’s length with the designated assessment centre.

27. The heading before section 54 is revoked.

28. Subsections 55 (4) and (5) of the Regulation are revoked and the following substituted:

(4) If an insured person does not comply with subsection (1), the insurer may notify the insured person that the insurer intends to stop payment of the benefit in accordance with subsection (5).

(5) If at least 14 days have elapsed after a notice was given under subsection (4) and the insured person has not complied with subsection (1), the insurer may stop payment of the benefit.

(6) Section 37 does not apply in respect of a stoppage of benefits, or proposed stoppage of benefits, under this section.

(7) If, after the stoppage of benefits under subsection (5), the insured person subsequently complies with subsection (1), the insurer shall resume payment of the benefit in respect of periods after the insured person complied.

29. Subsections 56 (3), (4) and (5) of the Regulation are revoked and the following substituted:

(3) If an insured person does not comply with subsection (1), the insurer may notify the insured person that the insurer intends to stop payment of the benefit in accordance with subsection (4).

(4) If at least 14 days have elapsed after a notice is given under subsection (3) and the insured person is not in compliance with subsection (1), the insurer may stop payment of the benefit.

(5) Section 37 does not apply in respect of a stoppage of benefits, or proposed stoppage of benefits, under this section.

(6) If, after the stoppage of benefits under subsection (4), the insured person subsequently complies with subsection (1), the insurer shall resume payment of the benefit in respect of periods after the insured person complied.

30. (1) Subsection 59 (2) of the Regulation is amended by striking out “section 10 of the Workers’ Compensation Act” and substituting “section 30 of the Workplace Safety and Insurance Act, 1997.”

(2) Subsection 59 (3) of the Regulation is amended by striking out “section 10 of the Workers’ Compensation Act” and substituting “section 30 of the Workplace Safety and Insurance Act, 1997.”

(3) Subsection 59 (4) of the Regulation is amended by striking out “section 10 of the Workers’ Compensation Act” and substituting “section 30 of the Workplace Safety and Insurance Act, 1997.”

31. Clauses (a), (b) and (g) of the definition of “temporary disability benefit” in subsection 60 (3) of the Regulation are revoked and the following substituted:

(a) an income replacement or non-earner benefit paid under this Regulation, unless the benefit is paid more than 104 weeks after the onset of the disability,

(b) a caregiver benefit paid under this Regulation,

. . . . .

(g) benefits paid under section 37, subsection 43 (9) or subsection 147 (2) of the pre-1997 Act, as defined in Part IX of the Workplace Safety and Insurance Act, 1997, in respect of injuries that occurred before January 1, 1998, including benefits paid under those provisions as those provisions are deemed to have been amended by Part IX of the Workplace Safety and Insurance Act, 1997,

(g.1) benefits paid under subsection 43 (3) of the Workplace Safety and Insurance Act, 1997 in respect of injuries that occurred after December 31, 1997, or

32. (1) Subsection 65 (1) of the Regulation is revoked and the following substituted:

(1) The assignment of a benefit under this Regulation, or the assignment of the right to pursue a mediation, arbitration, appeal or variation proceeding under sections 280 to 284 of the Act, is void.

(2) Clause 65 (2) (b) of the Regulation is revoked and the following substituted:

(b) an assignment of a benefit to,

(i) the Ministry of Community, Family and Children’s Services,

(ii) a delivery agent under the Ontario Disability Support Program Act, 1997 or the Ontario Works Act, 1997, or

(iii) The Minister of Finance under subsection 6.1 (4) of the Motor Vehicle Accident Claims Act; or

33. Section 68 of the Regulation is revoked and the following substituted:

Notices and Delivery

68. (1) All notices required or permitted under this Regulation, other than a notice under subsection 24 (1.3), 32 (1) or (3.1) or paragraph 3 of subsection 43 (1), shall be in writing.

(2) Any document, including a notice in writing, required or permitted under this Regulation to be given to a person may be delivered,

(a) by faxing the document to the person or to the solicitor or authorized representative, if any, of the person in accordance with subsection (6);

(b) by leaving a copy of the document with the solicitor or authorized representative, if any, of the person, or with an employee in the office of the solicitor or authorized representative;

(c) by personal delivery to the person; or

(d) by letter mail, certified mail or registered mail,

(i) in the case of an insurer, addressed to the insurer or its chief executive officer at the insurer’s head office in Ontario as identified in the records of the Superintendent, or

(ii) in the case of a person other than an insurer, addressed to the person at his or her last known address.

(3) Despite clause (2) (d), any notice or other document that must be given within five or fewer business days shall not be delivered by letter mail, certified mail or registered mail.

(4) If an attempt is made to personally deliver a document to a person at his or her place of residence and, for any reason, it is not possible to personally deliver the document to the person, the document may be delivered by,

(a) leaving a copy, in a sealed envelope addressed to the person, at the person’s place of residence with anyone who appears to be an adult member of the same household; and

(b) mailing, on the same or the following day, another copy of the document to the person, addressed to his or her place of residence.

(5) In the absence of evidence to the contrary, a person is deemed to receive anything delivered by letter mail, certified mail or registered mail under clause (2) (d) or delivered to his or her place of residence under subsection (4) on the fifth business day after the day the document is mailed in accordance with clause (2) (d) or subsection (4).

(6) A document that is delivered by fax must include a cover page indicating,

(a) the sender’s name, address and telephone number;

(b) the name of the person for whom the document is intended;

(c) the date of the accident to which the document relates;

(d) the name, address and telephone number of the person to whom the document relates;

(e) the date and time the fax is sent;

(f) the total number of pages faxed, including the cover page;

(g) the telephone number from which the document is faxed; and

(h) the name and telephone number of a person to contact in the event of transmission problems with the fax.

(7) A document delivered in accordance with clause (2) (a), (b) or (c) after 5 p.m. local time of the recipient shall be deemed to be delivered on the next business day.

(8) Despite subclause (2) (d) (i) and subsections (5) and (7), if the insurer provides the name and address of a contact person to whom documents are to be delivered, anything delivered to the insurer that is not addressed to the attention of the contact person at that address shall not be considered to have been delivered to the insurer until it is received by the contact person.

(9) A reference in this Regulation to a number of days between two events shall be read as excluding the day on which the first event happens and including the day on which the second event happens.

(10) Subject to subsection (11), if any provision of this Regulation requires a person to do anything within a time period expressed in days or business days, the time period is deemed to expire on the last day of the time period at 5 p.m. local time.

(11) If a time period in which a person is required to do anything expires on a day that is not a business day, the time period is deemed to expire on the next day that is a business day at 5 p.m. local time.

(12) For the purposes of subsections (10) and (11), if the person delivering a document or notice and the person to whom the document or notice is to be delivered are in different time zones, references to 5 p.m. local time shall be read as references to the time when it is 5 p.m. in one time zone and after 5 p.m. in the other time zone.

34. Section 69 of the Regulation is revoked and the following substituted:

69. Each of the following documents shall be in a form approved by the Superintendent:

1. An application form referred to in clause 32 (2) (a).

2. A certificate required under section 34.

3. A notice under section 36.

4. A notice under subsection 37 (1).

5. A treatment confirmation form under section 37.1.

6. An application referred to in section 38, including the treatment plan.

7. An application under section 38.2.

8. An application under subsection 40 (1).

9. A notice under subsection 40 (2).

10. A report of a designated assessment.

11. An explanation under section 45.

12. A notice under section 49.

35. The Regulation is amended by adding the following section:

70.1 Form 1, as it read on September 30, 2003, continues to apply in respect of accidents occurring before October 1, 2003.

36. Form 1 is revoked and the following substituted:

Form 1
assessment of attendant care needs

Insurance Act

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37. This Regulation comes into force on the later of October 1, 2003 and the day it is filed.

 

 

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