Game Changer

By: Angela Stelmakowich, Editor

2013-01-01

Ontario stakeholders now have as a new guide 38 task force recommendations, released in November, on how best to proceed with efforts to combat auto insurance fraud in the province.

Generally well-received, the recommendations have been characterized by many as thoughtful and thorough. But it may be circumstances that have nothing to do with the meat of the proposals – from the possibility of longer timeframes imposed by the proroguing of the Ontario legislature to demands to flesh out recommendations before moving forward – that threaten to transform green light to red, at least in the short term.

Short-term forward movement will likely be important to sustaining momentum on what has become an expensive problem, one that KPMG pegs at $769 million to $1.6 billion annually and to which Ernst & Young might add $130 million to $260 million each year.

All indications are that this problem shows few signs of righting itself absent tough, concrete actions over time.

IN THE NEWS

Auto fraud in Ontario seems to be an increasingly frequent topic of conversation among government officials, elected representatives, regulators, insurers and all manner of players in related service and medical fields. But that apparent negative has a positive side.

The auto insurance fraud conversation was freshened recently with separate announcements about charges alleging fraudulent activities. In December, police for York Region – part of the Greater Toronto Area, the identified epicentre for auto insurance fraud in Ontario – reported that nine individuals had been arrested and charged as part of Project Sideswipe, on ongoing investigation.

York Regional Police alleged fraud revolving round staged collisions and false insurance claims at medical rehabilitation and assessment centres in Brampton, Toronto and Mississauga. Of the 41 charges, these include participate in criminal organization, possession of proceeds of crime over $5,000, money laundering, conspiracy and fraud. The nine charged individuals have been identified as current or former owners, principals, managers or key medical or legal service providers, while the facilities include medical assessment centres, injury treatment clinics, legal services offices and auto repair shops.

“For the first time, we see medical practitioners allegedly operating at private, for-profit medical clinics included in the charges,” Rick Dubin, vice president of investigative services for the Insurance Bureau of Canada (IBC), said in a statement after the charges were announced. The nature of the criminal charges “speak to the suspected highly organized exploitation of the insurance system,” Dubin added.

“It's not just about auto fraud, it's about organized crime,” says Kadey B.J. Schultz, a partner with Hughes Amys LLP. Calling it a societal issue, Schultz says auto insurance fraud “is a way the criminals access money to fund their other much more harmful activities.”

In January, talk of auto insurance fraud was also on the lips of the Financial Services Commission of Ontario (FSCO), which is expected to serve a pivotal role as Ontario's anti-fraud efforts roll out. FSCO announced 84 charges under the Insurance Act against two Toronto rehabilitation clinics and four people.

The clinics were each charged with seven counts of knowingly making false or misleading statements to an auto insurer to obtain payment for goods and services provided to an insured, and seven counts of engaging in an unfair or deceptive act or practice.

ADDRESSING ASSESSING

The long-awaited task force report, more than a year in the making, has inspired surprisingly consistent support. One example would be the Insurance Brokers Association of Ontario (IBAO), which supports the entirety of the report, says CEO Randy Carroll.

A few recommendations have attracted significant comment, including the call to license health clinics. The task force noted the provincial government should require the licensing of health clinics that treat and assess auto insurance claimants and empower FSCO to regulate their business practices.

Daniel Strigberger, a partner in the Insurance Litigation Group for Miller Thomson LLP's office in Waterloo, Ontario, regards the recommendation as the task force's most important.

Carroll would agree it is among the most important recommendations. In his view, the task force report makes clear that licensing health clinics is critical given the “explosive growth in accident benefit claims in the past three to four years that cannot be explained by health inflation, accident incidence or population growth.”

Strigberger says it is essential, however, that the licensing program have teeth. “If a clinic is unlicensed, the insurer should not have to pay any expenses in relation to that clinic. If a clinic contravenes the terms of a licence, it should be subject to suspension and/or revocation,” he argues.

“I have seen way too many claims where the dispute is solely between the clinic and the insurer – not the claimant and insurer. And in many such cases, it seems like the claimant's lawyer or paralegal is acting for the clinic and not the claimant,” Strigberger reports.

In an open letter to finance minister Dwight Duncan, Rhona DesRoches, board chair of FAIR Association of Victims for Accident Insurance Reform, charges “the proliferation of poor quality [independent medical examiners, IMEs] in the system is undoubtedly part of the core problem of the backlog of cases waiting to be heard at FSCO.”

Rocco Guerriero, president of the Association of Independent Assessment Centres (AIAC), noted in a letter sent to Canadian Underwriter last December that IME “companies undergo stringent quality assurance measures independently and by insurers to ensure they meet the highest standards and adhere to all regulations.”

“We certainly support the development and even more important, the enforcement, of some kind of a standard for independent medical examiners so that we have more of a peer-to-peer review and comment area than we currently do,” says Laurie Davis, executive director of the Alliance of Community Medical and Rehabilitation Providers.

As part of consumer education and engagement, Davis notes, it would also be helpful for the denial rate or patterns of IMEs to be known. “That would go a long way toward restoring some checks and balances to the system.”

With regard to the task force's health clinic recommendations, AIAC suggests there is a need to better understand these before rushing forward. “We would want to sit down with government officials to better understand what a licensing regime would look like in order to determine if it would deliver real benefits to Ontario policyholders,” notes AIAC, members of which perform the bulk of the neutral third-party assessments annually.

The association identifies what it regards as a hole in task force reasoning. The group “critically misses its core mandate of identifying how best to deter fraud when it fails to distinguish between the claimant-side assessment and treatment sector, and the work of the independent medical assessment for the insurer sector,” AIAC adds.

“The task force's recommendations to create a new, large government bureaucracy to license and regulate many insurance support services, from towing to health clinics, is worrisome. We believe many more practical tools exist to prevent fraud, without finding new ways for the government to add large regulatory and licensing costs to the sector,” the association contends.

STRONGER FSCO

“Health clinic licensing is a subset of giving FSCO more authority to investigate and enforce fraud and abuse claims. So the two go hand in hand,” says IBAO's Randy Carroll.

The task force has recommended beefing up FSCO powers with regard to, among other things, the following:

• investigating and sanctioning unfair or deceptive acts or practices;

• overseeing and auditing the business and billing practices of health clinics and individual practitioners who invoice auto insurers;

• having a range of sanctions that can be applied where clinics are not following FSCO's business practice standards; and

• having investigators working in the private sector provide information to FSCO where it would be relevant to detecting, investigating and enforcing sanctions against those engaged in organized or premeditated auto fraud.

“We agree with the task force's observation that FSCO's mandate should change from the regulator of the auto insurance industry to the regulator of the auto insurance marketplace, and we support the recommendations that have been put in place to accomplish this,” says Karin Ots, senior vice president of regulatory and government relations for Aviva Canada.

FSCO appears up to the task if comments following the announcement of the most recent charges are any indication. “When fraudsters falsify accident treatment bills, Ontario drivers take the hit through higher premiums,” says Philip Howell, superintendent and CEO of FSCO. “FSCO will continue to crack down on those who cheat Ontario drivers by abusing the auto insurance system,” Howell adds.

Ralph Palumbo, IBC's vice president for Ontario, has said the FSCO charges make clear “the need for the Ontario government to immediately implement the (task force) recommendations.”

But some of those recommendations, including greater FSCO authority, will depend on amending legislation, which has been stalled by the proroguing of the provincial legislature.

“We are concerned the momentum for change will be lost with all the political instability Ontario is facing,” says Carroll. “Even if a new premier makes this a priority, the opposition could bring down the government, which would delay implementation of the report for at least six months to a year.”

Since the legislature is not sitting, “changes that do not require active participation from government should be the first priority,” says Andrew Murray, president of the Ontario Trial Lawyers Association (OTLA). “A number of recommendations were directed to FSCO, and it is our hope that FSCO has already begun the process of initiating the necessary changes. Similarly, insurers were directed to collect and share statistics on the tow truck industry, collision repair facilities and health clinics, which we hope is something that is made a first priority,” Murray adds.

IN THE WORKS

Scott Blodgett, senior media relations advisor for Ontario's Ministry of Finance, says amendments to regulations can proceed while the legislature is prorogued. A proposed Lieutenant Governor in Council regulation – posted January 9 – noted at the time that changes to Ontario regulations that address the statutory accident benefits schedule (SABS), disputes between insurers, and unfair or deceptive acts or practices were being considered. Specifically, the amendments related to the following task force recommendations:

• the government should reduce uncertainty and delay for those who have legitimate auto insurance claims by moving aggressively to amend the SABS to make it clear that insurers are required to provide claimants with a full explanation whenever refusing to pay for treatment, assessment or other benefits;

• the government should amend rules so that claimants play a more active role in helping to detect and prevent fraud, specifically by requiring claimants to confirm attendance at treatment facilities and receipt of goods and services billed to insurers, and by requiring insurers to itemize the list of invoices they have received when they provide a benefits statement to a claimant every two months;

• insurers should have the ability to examine a claimant under oath, where this is necessary to determine which insurer should be responsible for coverage, without prejudice to the right for an examination under oath that now exists;

• the government should add the following to the list of activities described as unfair or deceptive acts or practices subject to sanctions under the SABS – charging insurers much more for goods or services than the ordinary retail price, and requesting a claimant to sign a blank form; and

• the government should clarify the exemption for lawyers and paralegals in the unfair or deceptive acts or practices regulation so that it applies to lawyers and paralegals only when they are acting in a legal capacity.

In January, the government announced that draft changes, expected to take effect June 1, include requiring insurers to provide claimants all reasons for denying a claim; giving claimants the right to receive a bi-monthly, detailed statement of benefits paid out on their behalf; increasing the role of claimants in fraud prevention (e.g., require them to confirm attendance at health clinics); and making providers subject to sanctions for overcharging insurers for goods and services and banning them from asking consumers to sign blank claims forms.

WHO PAYS?

Blodgett says that most of the task force recommendations do not include costs for the government. “The recommendations to be carried out by FSCO are cost-recoverable from the insurance industry,” he notes, adding that if FSCO expands its anti-fraud investigation resources, “costs will be recoverable from the insurance industry which, in turn, should benefit from reduced fraud activity.”

Palumbo says that government will need to do its part, especially with regard to FSCO and things like licensing of clinics and auditing of business practices. “What cannot happen is the fiscal restraints that the government is implementing now applies to this because if it does, I don't think the results that are anticipated by all stakeholders and the task force will be realized.”

Aviva's Ots suggests “the most significant resources and costs required will be to implement the recommendations pertaining to the licensing and regulation of health care providers. The health care industry should bear those costs as the price of admission into the Ontario auto system.”

Schultz says she does not have a great deal of optimism that the recommendations can be implemented in a timely manner without appropriate resources. Until there is some budget put to the effort, she notes, “I'm concerned that there's not going to be a lot of uptake on the recommendations because we need to have money to follow through.”

Ultimately, savings achieved from reducing fraud will be “passed on to consumers through lower premiums,” Blodgett says. Ots, however, is careful to temper expectations. “The favourable impact seen through any fraud reductions would help offset the inflationary pressures that the industry continues to experience. While we are consistently looking for ways to reduce the cost of insurance for all consumers, this initiative alone would likely not lead to widespread rate reductions.”

Says Palumbo, “Until these reforms are acted on, it's difficult to say what is going to happen with premiums. And even when they are, it does take time to get the rotten apples out of the system.”

PUBLIC BUY-IN

In releasing the final task force report, finance minister Dwight Duncan noted that “a vital part of combating auto insurance fraud in Ontario is informing and engaging drivers so they can detect fraud and avoid becoming victims.”

Public and consumer education is regarded as one way to keep momentum going. The public “cannot only help identify and prevent fraud, but to also understand and embrace the changes required to stamp it out,” Carroll says.

Blodgett reports that the province has begun the process of bringing stakeholders together to implement the task force recommendation that government join forces with insurers to form an Anti-Fraud Awareness Implementation Group to put in place a consumer engagement and education strategy.

The Alliance of Community Medical and Rehabilitation Providers' Laurie Davis is pleased with the emphasis on consumer engagement. “People really do not understand the product.”

The easiest recommendations to implement will be those directed at “insurers themselves as they are already uniquely poised to change their own practices and should have an inside track on trends, data and the release of such data,” says the OTLA's Andrew Murray.

Davis says the alliance firmly supports having insurers provide more specific medical reasons for denial. “We think this contributes enormously to the dispute and also to the barriers for treatment of legitimate claimants,” she adds.

“As providers and insurers wait on resolution of those disputes, there's a certain lack of clarity in terms of how the current system is working,” she says. Dealing with the backlog is key “so going forward with any further changes, we can do so in a way that we won't feel like we'll be waiting months or years sometimes for issues to be resolved.”

With regard to the backlog, Palumbo says “we need a new system, a system that will get the disputes resolved quickly so that insurers know exactly what it is that they're underwriting, what their costs are, and will make sure that injured claimants are treated properly.”

MISSING PIECES

With regard to the contents of the task force report, Aviva would have “liked to see more comprehensive recommendations on enforcement and prosecution, particularly as it relates to organized fraud,” Ots says.

“Partnerships with Crime Stoppers and other key stakeholders in law enforcement are essential to beating increasingly sophisticated insurance crime,” the IBC's Rick Dubin notes in a statement. “We believe that raising awareness and encouraging people to take the time to report insurance crime will significantly improve the detection and conviction of fraudsters,” he adds.

Another missing piece in the report, Ots suggests, is that “the task force's scope of review did not include a review of the auto insurance product. Aviva believes there are systemic problems within the current product that the government needs to tackle in order to fully address the causes of fraud,” she says.

The OTLA, for its part, has expressed concern about several recommendations “which are unfair to the members of the public, and add extra layers of cost and complexity to our insurance system. Specifically, we oppose the $500 penalty suggested for a missed insurer medical exam. This suggestion has nothing to do with combating fraud,” Murray argues.

“Moreover, there are already drastic sanctions within the existing accident benefits schedule to deal with missed insurer exams,” he contends.

Carroll's view is that the fee for missing appointments makes sense. “I get charged a fee if I miss a scheduled appointment with my doctor or dentist. Why should this not be the same for medical examination appointments?”

AIAC notes it has a general concern that many task force recommendations “seem to reflect a view that greater government involvement and regulation of auto insurance is the ultimate panacea.” The group suggests “the Ontario public is unlikely to welcome the costs associated with a large, new bureaucracy or believe that greater government regulation will lead to reduced premium costs.”

Despite the many positives, and the general support, “there is a lot of work that remains to be done in order to better understand what these recommendations would look like in practice,” AIAC emphasizes.

“When fraudsters take advantage of the system, legitimate insurance claims may be delayed for people in real need,” IBC reports. “The result is that all claimants have to go through the same tough system aimed at fraud artists and the extra costs for insurers result in higher insurance costs for everyone.”

Passing regulations and passing legislation “doesn't accomplish much if it's not rigorously enforced,” Davis adds.

“The fraudsters are the entrepreneurs. They are the ones who lead the harvesting of the insurance money. They are the ones who come up with the tactics and execution. They know how to make the money and they know how to make it quickly,” Schultz says. “If we are constantly in a situation of responding, it's going to be hard to mitigate these losses in any real, tangible way.”

Accident-benefit dispute process makes no sense

Monday, 21 January 2013 00:00 –  Written by Darcy Merkur

It’s a situation that happens way too often. Your personal injury client is seriously injured and needs ample care and rehabilitation. Thankfully, and with effective legal representation, you navigate through all of the red tape, leap over all of the hurdles the accident benefit insurer puts in your way, and things run smoothly until the insurer secures a highly contentious independent medical examination report that leads to crucial treatment and care denials.

The report, often by someone specializing in independent medical examinations rather than treatment, concludes that the care recommended by the treating health practitioner is unnecessary and unreasonable.

What do you do?

You try to persuade the insurance adjuster to reconsider the denial by providing additional medical support for the request and explaining how the report is sloppy and riddled with numerous factual errors. The insurer, however, maintains the denial.

Now what?

You know that any means of disputing the denial could take years to resolve.

You imagine explaining to your client the dispute process in which they’ll have to file for mediation with the Financial Services Commission of Ontario but won’t be able to get a mediation date any time soon. As a result, you tell them they’ll either have to wait until they get a mediation date or wait 60 days and then rely on the now-accepted deemed-failed mediation rule. Only then do they have the privilege of filing for arbitration or litigating in the courts, you tell them. If they take the shorter arbitration route, they can expect to wait more than a year given long lineups resulting from reliance on the deemed-failed mediation rule. Of course, they then have to wait an uncertain length of time for the results of the arbitration all the while knowing that any decision is still subject to appeal.

You consider options to expedite the process or move for interim relief but are conscious of the fact that almost everyone in the dispute queue, including a large number of your clients, have similarly time-sensitive complaints.

The accident benefit dispute process makes no sense. The premise of the no-fault system is immediate access to necessary benefits. A lengthy dispute process to resolve claims for immediate benefits is absurd.

Meanwhile, while the dispute is pending as your client suffers without the treatment.

You can threaten claims for bad faith, mental anguish, special damages, and punitive damages, but the accident-benefit insurer isn’t worried since an independent medical examination report supports the denial.

What we need is a better dispute process that’s more efficient and timely. We need a system that’s accessible without delays that impede a claimant’s recovery.

Developing a new process and gaining support for it will be a challenge and will take time. In the meantime, we need to make independent medical examiners more accountable for sloppy or biased reports and we need to make insurers more accountable for relying on them.

Catastrophic impairment cases continue to vex insurers

By Alan Shanoff ,Toronto Sun

First posted: Saturday, January 19, 2013 08:29 PM EST

Anybody seeking insight into the real workings of the no fault auto insurance industry should read the cases posted on the Financial Services Commission of Ontario website.

Many of the cases I've discussed in this column are derived from that site as does the M.G. arbitration decision released late last year.

M.G. was a healthy 55-year-old registered nurse at a Toronto area hospital. Married, with three adult children, her life was “busy, happy and highly productive.” Colleagues testified to her nursing skills and called her the “life of the floor.” She had a “busy social life” and was “active” in her church.

Then came the accident. While crossing the street on November 2, 2005 she was struck by a school bus. With her head striking the pavement she suffered a brain injury, either a concussion or a mild closed head injury, leading to cognitive impairments. Since the accident she has suffered chronic pain, mobility limitations, disturbed sleep, headaches, fatigue, dizziness, urinary incontinence, irritability and frustration over her cognitive and physical limitations.

After failed attempts to return to work, “depression, anxiety and chronic pain took over her life.” Unless prompted, she would sit in her room all day.

M.G.'s insurer, The Economical Mutual Insurance Company, provided and then ceased no fault income replacement and attendant care benefits following the accident.

Economical stopped making the income replacement payments on the purported basis that M.G. had not participated in necessary and reasonable treatment as recommended by one of the insurer's physicians. But according to the arbitrator the evidence was clear that M.G. had in fact promptly sought and participated in treatment “very similar” to the treatment recommended by the insurer's expert.

In spite of this, Economical cut off the income replacement payments and didn't reinstate them for 2 1/2 years, until just prior to the arbitration hearing, providing no explanation for the delay in reinstatement.

Economical paid M.G.'s attendant care benefits of $1,020 per month for two years following the accident but ceased payment, taking the position M.G. wasn't catastrophically impaired, relying on expert reports prepared by Custom Rehab & Assessments Canada Ltd.

While both M.G. and the insurer's experts agreed on many aspects of the injuries they could not agree on the severity of the impairments. But the arbitrator had little difficulty in making a determination of catastrophic impairment and ordering Economical to continue attendant care payments in the sum of $1,462.70 per month, in addition to $100 per week for housekeeping services.

The arbitrator concluded that the CRACL reports were flawed for various reasons, including the failure “to consider and compare all of the relevant impairment levels and correctly apply them to the facts,” basing “conclusions on limited and inaccurate information,” and incorrect application of the impairment rating system.

It's doubtful M.G.'s injuries would satisfy the proposed definition of catastrophic impairment currently under consideration by the Ontario government.

One case doesn't permit generalizations, or mean that Economical is a bad insurer, or that CRACL doesn't generally provide competent assessments, but here we have yet another illustration of an accident victim having to fight for years to access her right to accident benefits. The accident took place in late 2005. The arbitration hearing took place over a 12 day period in 2012, with the decision being released in late 2012.

We've had recent public hearings into the auto insurance industry focusing on a wide array of subjects. We've had reports from the Automobile Insurance Anti-Fraud Task Force and the Catastrophic Impairment Expert Panel. What we haven't had is an inquiry focusing on insurance industry practices.

It's puzzling why every aspect of the auto insurance industry is up for review save for insurance industry practices. Perhaps the next premier of Ontario will remedy this omission. It would sure generate a lot of votes. But I wouldn't bet on an inquiry, not with reports of $60,000 contributions by the Insurance Bureau of Canada to the leading candidates in the Ontario Liberal leadership race.

Charges laid in fraudulent auto injury claims investigation

Published on Friday January 18, 2013

 Michele Henry

Staff Reporter

A Toronto man studying to be an anesthetist and two medical rehabilitation clinics are among those charged by the province in connection with an alleged scheme to submit false injury claims to auto insurers.

Danny Grossi, who has medical training but is not a practicing doctor in Ontario, and the two Toronto clinics were among the subjects of a Toronto Star investigation in 2011.

The Financial Services Commission of Ontario, which investigates cases involving insurance, charged Grossi, three other men and two clinics — the Fairview Assessment Centre and the Pacific Assessment Centre, both on Finch Ave. W.

Commission investigators allege the men and clinics “knowingly made false or misleading statements” to obtain payments from an auto insurer.

The charges against the men have not been tested in court. The Star was unable to reach Grossi Thursday. The clinics are no longer in business.

Philip Howell, superintendent of the commission, said insurance rates for all drivers rise when insurance companies pay out on bogus treatment claims.

Speaking about the issue in general, Howell said his commission will “continue to crack down on those who cheat Ontario drivers by abusing the auto insurance system.”

The Star looked at a number of insurance clinics when it tackled the issue in 2011. It found instances of large claims being paid out that, after investigation, the insurers determined were invalid because the person either was not injured or was hurt but did not need the equipment or treatment prescribed.

The Star found that tow truck drivers or paralegals often directed accident victims to rehab clinics in return for a finder’s fee. The accident victims, who often spoke little or no English, would then be handed forms authorizing the clinic to submit claims to their insurance company.

Doctors interviewed by the Star said they themselves had been victims of irregularities. One doctor said his signature was used to verify claims he had never heard of.

Grossi, who at the time of the Star story was training to be an anesthetist, was earlier the subject of a lawsuit by Economical Insurance. The insurer alleged he and others used information about 55 car accident victims to submit fake invoices to three insurers.

The lawsuit alleged Grossi submitted fake invoices and his name appears as “provider” of the medical services.

Grossi defended himself against the statement of claim, denying “any role in the conspiracies alleged.”

His lawyer wrote to the Star saying that Grossi himself was a victim and that he had “serious and significant concerns with respect to Dr. Grossi’s signature being misappropriated by third parties.”

The lawyer referred to Grossi as “Dr.” in correspondence to the Star. However, the college that regulates physicians said he had not attained that designation. A search at the college Thursday turned up no listing for Grossi.

The Insurance Bureau of Canada created a tracking system to collect information on people suspected of making false claims. In 2011, about 300 clinics were believed to be loosely connected, allegedly sharing information and participating in the same scheme.

Some insurers estimate bogus claims cost the industry millions of dollars a year overall, but nobody has been able to determine the true amount. The volume of all claims in Ontario is so high that investigators believe many are paid (often for small amounts) because it is too much work to investigate them.

Among fake invoices the Star found related to a variety of clinics were $2,363 for “aqua fitness therapy,” $1,247 for a portable acupuncture machine, and $1,980 for a “whole body vibrating plate.” There was also a $1,293 invoice for a long-handled Swiffer and cleaning material for a man who allegedly needed help cleaning his house after a minor injury.

Conviction under the charges is punishable by a maximum fine of $250,000 on the first conviction and a maximum $500,000 penalty on each subsequent conviction.

The other three men facing charges are Alexandre Lobatch, Yaniv Tamsout and Vitali Tourko.

Health minister urged to tell colleges to publicize cautions

Health Minister Deb Matthews must take “immediate” action to ensure that Ontario’s health regulatory colleges publish cautions issued to doctors, dentists and others for mistakes or improper behaviour, say opposition parties.

A recent Star investigation revealed that more than 2,200 secret cautions were issued to Ontario health-care professionals between 2007 and 2011 by the colleges that regulate them.

Matthews’ ministry recently gave the green light to colleges to publicize cautions, but stopped short of telling them they should do so.

As a result, patients still have no way of learning from the colleges which practitioners have faced cautions. Colleges argue a provincial law does not allow them to publish details of these warnings.

The Star found cautions, which are different from public disciplinary actions, often dealt with serious issues, such as improper communication with patients, a lack of timely referrals and errors in prescribing medication.

After the Star raised questions with the province about the lack of transparency surrounding cautions, a top health official met with the Federation of Health Regulatory Colleges of Ontario to stress that colleges can publish details of cautions without a change to the Regulated Health Professions Act.

Progressive Conservative health critic Christine Elliott said Matthews must provide the leadership necessary to make sure the public is protected.

“These colleges exist to protect the public and if they’re not making this information available to the public, then the minister can’t hide behind their so-called independence,” she said. “(Matthews) is ultimately responsible … and needs to work with the colleges to make sure the public gets the information they need.”

NDP health critic France Gélinas echoed those concerns, and added the current “back-and-forth” between the ministry and the colleges over who has jurisdiction to make caution details public “is not helpful.”

“If there is a discrepancy, it is up to (Matthews’) ministry to sit down and engage in a dialogue with the colleges to straighten things out,” Gélinas said. “There is a strong reluctance within the health-care system to be transparent, but whenever they are, it makes things better. . . . Let’s move on with this. Let’s be accountable.”

Matthews told the Star in a statement Tuesday she has “no plans to require” colleges to make the cautions public. She said the government “will always do what’s best for patients” and said patients should report any concerns they have to the appropriate college.

“Colleges have the authority to publicly report cautions,” she said. “I urge them to continue to review their policies to support our shared goals of transparency and responsibility to the public.”

The health college federation says it needs a legal opinion and time to consider whether cautions can be made public through internal bylaws.

Such a change would require “a careful, considered analysis of the Regulated Health Professions Act and of the implications of any proposed changes through mechanisms provided by the legislation,” said federation president Linda Gough.

“This is a complex issue and the answer is not clear,” she said.

Lori DeCou, a spokesperson for the Ontario College of Pharmacists, said her college was “committed to considering the publication of cautions” and that the issue would be discussed at an upcoming executive committee meeting.

“Any subsequent review of this would consider the means by which this could be achieved, such as change to existing bylaws or other,” she said.

College of Physicians and Surgeons spokesperson Kathryn Clarke reiterated Tuesday her college’s “willingness to discuss with the ministry whether more information about registrants should be made public and, if so, how to best achieve any desired change.

Ontario appeal board upholds caution issued to IME in auto claim

DAILY NEWS Jan 16, 2013

By: Greg Meckbach, Associate Editor

2013-01-16

The Ontario Health Professionals Appeal and Review Board recently confirmed a decision by a committee of the College of Physicians and Surgeons of Ontario (CPSO) to caution an independent medical examiner who made what it called an “inadequate and inaccurate” report in an auto insurance claim on behalf of State Farm Mutual Automobile Insurance Company.

Last Friday, the board published its decision, identifying the doctor only as K.I. and the claimant as L.K. Doctor K.I., an IME retained by State Farm, had been issued a caution by the Inquiries, Complaints and Reports Committee of CPSO, which ruled that she failed to comply with CPSO's policy on third-party reports.

That policy stipulates that when providing such a report, physicians must “take reasonable steps to ensure that they have obtained and reviewed all available clinical notes, records and opinions relating to the patient or examinee that could impact the findings of the report” and should ensure the information is accurate.

“The (IME) report indicates that the (claimant) was backing out of her driveway and was hit by an oncoming car, while the information before the Committee indicated that the (claimant) was hit by a car backing out of a driveway,” the board noted in a report.. “The report omitted the fact that the police were called, the car was damaged to the extent that it had to be towed away and was written off, which the Committee wrote, 'speaks to the extent of the motor vehicle accident.'”

CPSO only names doctors who have been subject to disciplinary proceedings, and not those who have been issued cautions. The college is mandated by Ontario's Regulated Health Professions Act to provide specific information on doctors, including restrictions on doctors' licences. However, CPSO has said the outcomes of complaints investigations that do not result in a referral to discipline are not, by law, public information.

The Ontario Health Professionals Appeal and Review Board, which has jurisdiction over the 28 regulated health professions in the province, has the power to confirm all or part of a decision of the CPSO Inquiries, Complaints and Reports Committee. It can assess the reasonableness of a decision or adequacy of an investigation, but it does not award money or damages, nor may it conduct its own investigation once a committee issues its decision. The board does not have the power to require that the committee make a finding of misconduct or incompetence against a doctor.

In the case of Dr. K.I., she was issued a caution by CPSO, which she appealed to the board, which ruled Jan. 11 that the caution was “reasonable.”

“The Board notes that a caution is not a sanction. It is remedial in nature.”

In background information published in its report, the appeal board noted that L.K. was in a collision Nov. 1, 2010, and that State Farm retained Dr. K.I. as an IME.

L.K.'s family doctor “felt that a referral for psychological services was indicated,” according to the board's decision, but the IME did not. In her report, dated May 5, 2011, Dr. K.I. “referred only to a physiotherapy report written shortly after the accident and did not discuss any of the other 37 documents in the file, including the opinions of the (the claimant's) physician and other health professionals that an assessment was required,” according to the board, which said the CPSO committee's ruling that the IME failed “to take reasonable steps to ensure that they have obtained and reviewed all available clinical notes records and opinions” was “reasonable.”

Dr. K.I. also based her appeal on the contention that L.K. “should have raised her concerns with the (IME) report under the mediation and arbitration processes provided under the Insurance Act and that the College (of Physicians and Surgeons) is the wrong forum for the determination of her concerns.”

The board noted that Dr. K.I.'s lawyer “submitted that having determined the (IME) was properly qualified, the Committee should defer to her expertise,” adding: “if the College engages in the review of third party assessment undertaken by qualified health professionals, it will deter physicians from conducting assessments.”

But the board ruled that the central issue before the CPSO committee was whether the doctor's conduct met professional standards.

Late November, the Ontario Automobile Insurance Anti-Fraud Task Force Steering Committee recommended that the province require insurers to disclose publicly how they choose and assess the performance of businesses and professionals they recommend or refer consumers to see, such as IMEs. The task force also recommended that insurers be allowed to collect a cancellation fee of $500 for claimants who fail to attend a scheduled appointment after agreeing to do so, if they fail to provide “adequate notice” or a “reasonable explanation.”

FAIR ? Time to Fix Ontario?s Broken Auto Insurance System Jan 16 13

 By Rhona DesRoches

Whoever wins the Ontario Liberal leadership race should pay closer attention to making our broken auto insurance system fair for injured accident victims and their families.

Too often the Ontario auto insurance system treats seriously injured claimants unfairly and yet this issue still isn’t getting consideration from legislators or regulators at Queen’s Park. Current “fixes” are heavily tilted in favor of protecting the financial health of Ontario’s private auto insurers at the expense of the physical health of injured claimants.

The perception that our government takes Ontario’s insurance industry interests more seriously than public health has been heightened by the news that at least three of the Liberal leadership candidates have accepted sizable donations from the Insurance Bureau of Canada. The question will be asked, is the insurance industry using donations to get the legislation they want passed before an election?

FAIR, the Association of Victims for Accident Insurance Reform is a consumer group. We are accident victims, their families and supporters who think we need to fix our insurance system.

What’s wrong with auto insurance in Ontario? A lot, if you ask FAIR’s members, or anyone of the more than 60,000 people in Ontario who are injured in motor vehicles accidents annually.

Here are just some of the problems:

* In 2010, the provincial government arbitrarily put a $50,000 limit on the amount anyone can claim for basic coverage — cutting in half the upper limit of funds for non- catastrophic injury that people previously could receive from insurers after a debilitating accident. Perhaps worse, a more insurer-friendly method of calculating what counts as “catastrophic injury” has been recommended by a panel of insurer-friendly medical “experts.”

* In 2010 Ontario allowed insurers to limit victims’ claims for so-called “minor injuries” to $3,500, down from the previous level of $100,000. While this may sound reasonable, $3,500 is not enough to cover even basic rehabilitation after an auto accident. Worse, an overly aggressive use of the Minor Injury Guideline has contributed to wrongful inclusion of serious injury cases within the guideline benefit limits.

* Many Ontarians run out of treatment funds within six months, which can compel them to settle for less than what is fair given the insurance premiums they paid and what they’ll need for recovery. Hardball insurer assessors often exacerbate this problem.

* There’s still a sizable backlog of claims in Ontario — some 20,000 claims in the province are reportedly in dispute, with most waiting more than a year for resolution. The Ontario government has put immense resources into cutting hospital waiting times — why is it standing by idly while insurance claim waiting times remain intolerable?

* The wrongful denial of policy benefits to injured claimants based on shoddy insurer assessments through Independent Medical Exams (IMEs) is a central problem in the Ontario auto insurance system. These questionable ‘independent’ opinions often deny or delay victims getting the help they need and drive up costs to both the injured victim and the taxpayer who must shoulder the burden when insurers fail to do so.

*The quality of Ontario’s IMEs has frequently come into question and has become the cause of widespread consumer mistrust of auto insurers. College sanctions of their members, out of sight of public scrutiny, have allowed the ‘independent’ for-hire assessors to ignore the College regulations while pursuing profits from insurers.

*The government is poised to implement a key recommendation of the recent Anti-Fraud Task Force which would impose a $500 fee on victims who miss one of the dubious insurer-ordered examinations. Frankly, there are other measures currently available to deal with people who repeatedly miss appointments. But it must be said that there is a real imbalance of power between insurers and their preferred assessors versus cognitively vulnerable and seriously injured claimants. Imposing a $500 fee for a missed appointment amounts to extortion for not submitting to what often turn out to be substandard assessments performed by “hired guns” masquerading as impartial assessors.

Insurers justify this harsh treatment of victims of serious accidents by saying it’s necessary in order to prevent fraud and keep premiums reasonable for the millions of Ontarians who pay insurance every year and don’t make claims. The result could not be more different: all we get is ever-higher premiums, lower benefits and skyrocketing profits for insurers.

FAIR is neither advocating for or against public auto insurance as a replacement to the current private sector system we now have in Ontario. Consumers should consider the poor performance of private auto insurers – Ontario faces the highest premiums and the lowest benefits in Canada. FAIR believes all options for better coverage ought to remain on the table.

The majority of us will never be in an accident but all of us take our chances on our roads and highways. It needs to be asked —in a province where consumer goods and services are constantly getting better, why is auto insurance one of the only products that seems to perpetually get worse?

It’s something the next premier, our new government — and everyone in Ontario — ought to be asking and our auto insurers need to answer.

Rhona DesRoches is the Chair of FAIR Association of Victims For Accident Insurance Reform http://www.fairassociation.ca/ ([email protected])

Insurers pushing for more reforms soon

Thompson’s World Insurance News

Further reforms to the Ontario auto insurance system can still be initiated early this year through regulation changes despite the government prorogation amid Premier Dalton Mc- Guinty’s resignation last fall. 
    With this in mind, the Insurance Bureau of Canada is preparing a comprehensive package for all MPPs to highlight its ‘Price Is Wrong’ campaign and related consumer feedback — all of which insurers say is critical to maintaining reform momentum. 
    And in a further effort to ease auto insurance rate pressures, development continues on new fraud detection software, with the IBC providing input on governance principles, incorporation of a new entity to administer the new tool and a plan for bringing it to the marketplace.
    “IBC is working to ensure that needed reforms — in these and other areas — are implemented quickly and effectively by the government in the interests of all Ontarians,” IBC Ontario vp Ralph Palumbo said. 
    The Ontario government’s 2012 budget also identified an interest in exploring the implications of usage-based auto insurance. 
    IBC plans to hold a conference this year to raise awareness of such programs and to better understand the challenges and benefits. 
    In the Atlantic region, the bureau has been working with government and other stakeholders to implement the second phase of the Nova Scotia auto reforms. 
    And the bureau has been ramping up its outreach efforts to businesses and municipal and consumer leaders on the crucial role that p&c insurers play and on adapting to extreme weather.

Health colleges given go-ahead to make cautions public

Kenyon Wallace

Staff Reporter

Ontario’s health ministry has given colleges that regulate doctors, dentists and other health-care workers the green light to make public the cautions issued for mistakes or improper behaviour.

A Star investigation published Friday revealed patients are being kept in the dark about the warnings issued to health-care workers by the colleges that oversee them.

While the colleges do publicize the results of disciplinary actions, the Star found that cautions — some of them dealing with very serious issues — are kept secret. 

This means that patients have no way of finding out from the colleges if their health-care providers have been cautioned.

In rare cases, details of cautions become public when they are appealed to a provincial review board.

More than 2,000 of these secret cautions were issued between 2007 and 2011, the Star found.

Zita Astravas, a spokeswoman for Health Minister Deb Matthews, told the Star that a top health official met early last week with the Federation of Health Regulatory Colleges of Ontario, after the Star raised questions with the ministry and colleges over the lack of transparency surrounding mistakes made by health-care professionals.

Astravas said the assistant deputy minister with the health ministry told the colleges at the meeting that “if colleges wanted to make cautions public they can do so without a regulatory change.” Astravas stressed, however, that “any changes made either through bylaws or other mechanisms need to be carefully considered.”

The ministry says colleges can pass a bylaw allowing cautions to be made public, and do not have to wait for the Regulated Health Professions Act to be amended.

But the 21 colleges that regulate the province’s approximately 267,000 health workers argue that the act does not permit them to publish cautions. The colleges stress that cautions are considered remedial and are not findings of professional misconduct.

Linda Gough, the health federation’s president, said colleges “are always ready to discuss with the ministry . . . whether further amendments are required to the legislation, for example, whether more information about registrants should be made publicly available.”

In a statement to the Star, Matthews said it is “very important” that the colleges “never lose sight that their job is to protect the public.”

“The ability to issue cautions is a tool that is used to educate members on how to better serve their patients,” Matthews told the Star. “We entrust our colleges to decide what measures are appropriate for the governance of their profession. The ministry and regulators continue, as we have in the past, to work together on how we can better serve Ontarians in a transparent way.”

Rosemarie Rohrbach-Gabriel, whose husband, Bert Gabriel, died of complications from colon cancer in 2009, said she was surprised to learn colleges have the ability to make cautions public but instead keep them secret.

“It makes it more upsetting that they would have the right to make cautions public but choose not to do that,” she said. “They’re supposed to serve the public.”

Bert Gabriel’s Toronto colonoscopy doctor, Harry Himal, was cautioned by the College of Physicians and Surgeons regarding the length of time he planned to wait before performing a followup colonoscopy after discovering inflammation in Gabriel’s bowel.

Both Himal and his lawyer, Jeffrey Freedlander, declined to comment when contacted by the Star.

Irwin Fefergrad, registrar of the Royal College of Dental Surgeons of Ontario, said it’s time for the colleges and the ministry to sit down and determine how serious cautions — cases in which there is a risk to the public or harm done to a patient — can be put on the public register.

“I absolutely welcome a dialogue with the ministry on increasing transparency,” he said, but noted that as he interprets the Regulated Health Professions Act, it would be difficult to make cautions public through a simple change to a college’s bylaws.

“(Minister Matthews) may have an answer that says the act gives you the flexibility . . . it’s a discussion we need to have.”

Kathryn Clarke, a spokeswoman for the College of Physicians and Surgeons, said Ontario’s regulatory health colleges are “committed to transparency” and make more information available about their members than most other professional regulatory bodies.

“Few, if any other regulators, put information on the public register about professional negligence findings or about resignations in the face of an investigation,” she said.

Clarke noted the college is working on a transparency project “to ensure that Ontario stays at the forefront of providing information to the public to inform their medical care.”

Kenyon Wallace can be reached at [email protected] or 416-869-4734.

Cashed-up Ontario Liberal candidates play with fire