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McLeish Orlando: Selina Andrello and Krystal Leonov, Student-at-Law

FSCO's new revised attendant care outline

Written By: Selina Andrello and Krystal Leonov, Student-at-Law 

On April 11, 2018, the Financial Services Commission of Ontario (FSCO) released a revised Attendant Care Hourly Rate Guideline aimed at clarifying the obligation of insurance companies to pay the Attendant Care benefits. Section 19(2) of the SABS directs insurers on how to calculate the amount of monthly benefits for injured clients. This section states that entitlement is to be calculated by taking the number of hours for each service and multiplying them by the rate set out in the guideline.

Section 19 of the SABS states:

2) Subject to subsection (3), the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled “Assessment of Attendant Care Needs” that is required to be submitted under section 42 and is calculated by,

(a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care; and

(b) adding the amounts determined under clause (a), if more than one type of attendant care is required.

The problem with the wording in the previous Attendant Car Hourly Rate Guideline was that insurers were only paying for services based on the hourly rate per level of care rather than simply paying the calculated monthly benefit.  It easily recognizable that that these rates, currently $14.90 per hour, $14.00 per hour, and $21.11 per hour for each of the relevant care levels, fall far below the market rates for professional care.

As insurers started imposing hourly rates for services as opposed to the monthly calculation, people in need of attendant care benefits were left with little support. Vendors struggled to provide invoices with enough detail to interpret which level of service was being provided and people were unable to access care due to the shortfall between the hourly rate paid by an insured and the average market rates billed by professional providers. As such, some people were being left with no support even when they were in desperate need.

The revised Attendant Care Hourly Rate Guideline however, has clarified that the hourly rates are only to be used in the calculation of monthly attendant care entitlement. The Guideline expressly confirms that once the insurer has given notice of the approved monthly entitlement rate, insurers “shall use the resulting monthly attendant care benefit amount to pay the benefit.” Therefore, insurers can longer try to reduce payment for care to hourly rates only.

Secondly, FSCO has also released clarification with respect to the intention of the Professional Services Fee Guideline after the uproar following the License Appeal Tribunal decision of 16-003478, J.A. and The Co-operators General Insurance Company. In this decision, the adjudicator interpreted the SABS and Professional Services Fee Guideline as directing that “qualified case managers” are to be paid at the case management rate of $89.07 per hour regardless of their professional designation. For example, am Occupational Therapist who earns $175.00 per hour pursuant to their professional rate would still only earn $89.07 as a case manager.

With the release of the new guidelines, FSCO has now clarified that expenses for regulated and unregulated providers identified in the Professional Service Guidelines are payable according to their professional designation and not by the service they provide. Overall, both Guidelines  are great news in relation to accident benefit legislation and even better news for people who are badly injured.

You can see the revised guidelines on the FSCO website.

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