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8 April 2005:
Playing fair - an exchange in Post Mag
The following is an exchange shortly to be published in Post Magazine and is part of the ongoing debate about fair play in the world of rehabilitation for injured people.
The enquiry -
"Insurers were recently accused of abusing the rehabilitation code by threatening not to pay for treatment unless claimants use their preferred providers for assessment (front page, Post Magazine 3.2.2005). Insurers for their part deny any bullying tactics and claim to work collaboratively and flexibly. So we take a look under the surface of this issue.
How many cases has the Bodily Injury Claims Management Association identified where insurers have made it mandatory for their approved providers to carry out the assessment process?
If these are reputable and independent rehab firms, why is this a problem? Is BICMA suggesting that the recommendations made are different to what another party would make?
What specifically does the rehab code require in terms of who provides the assessment and any treatment? Does it outlaw anything such as provision by insurer-owned or insurer-approved firms? What shape would the ideal solution take? What is insurers' understanding of the code and the obligations it imposes on them and do they believe their interpretation is a compliant one? And will this situation be impacted by rehab becoming part of the pre-action protocol this month (April)? For example, does the new reference include any stipulation on providers?"
BICMA's response
Most Insurers have adopted the need for rehabilitation and accept that early intervention and treatment can benefit both the recovery and well being of the claimant as well as the general claims process.
There are a few insurers who, it would seem, have yet to be fully convinced and have no specific rehabilitation strategy.
It is also a fact that different offices of a particular insurer may take a different attitude toward the subject as, on occasions can different claims handlers in the same office.
All of the above applies equally to a few claimant solicitors who also demonstrate inconsistency both as different practices, as between offices in the same practice and individual fee earners within one office.
Whilst most practitioners support the need to provide and use rehabilitation there remains inconsistency in approach.
The Personal Injury Pre Action Protocol sets out good practice and specifically encourages practitioners to work to the standards set by The Rehabilitation Code. This requires that there be an “independent assessment” by an agency “financially and managerially independent” of either claimant or defendant representatives.
Inevitably, each side will have it’s own favourite provider.
The solicitor will be recommending an in depth assessment of the client in the clients own home and will need to identify a suitable agency or case manager that can be recommended with confidence to the client, usually based on previous experience.
The insurer, who under the code must bear the cost is likely to have one or more “approved” providers who it prefers either on performance or cost, or both.
Sometimes both have a preference for the same provider in which event there is unlikely to be a problem. However problems can occur when the claimant’s solicitor proposes a provider not on the insurers preferred list..
Most insurers will agree the solicitor’s request if it is to use an established recognised rehabilitation provider. Unfortunately, some insurers are insistent that only their preferred provider can be used and refuse agreement to any other provider. In itself this may fuel suspicions that the provider is expected to work to accomodate the views or influences of the insurer which (rightly or wrongly) undermines confidence in the independence of the provider. Whether this occurs or not the fact that there is an issue creates a disagreement between the parties and delays arranging a needs assessment. The time taken arguing about the provider can be both distressing and debilitating for the injured claimant. Two scenarios follow.:-
The solicitor will eventually, due to the lack of availability of funding, reluctantly agree to the insurers proposal and invite a provider of whom he has no knowledge or experience to carry out the assessment
Or
The solicitor instructs his chosen provider on a sole instruction with the result that the insurer is not part of the the process as envisaged.The rehabilitation is then more likely to have to be funded by enforced interim payments thereby effectively returning to the adversarial situation as we all knew it pre 1995.
This situation is clearly detrimental to the whole rehabilitation initiative and contrary to the spirit of the Rehabilitation Code.
Rehabilitation is most effective when it is available early following injury. Arguing over who provides the needs assessment is detrimental to the increased use of the Rehabilitation Code and the whole concept of a constructive joint approach to provide the claimant with what is needed to maximise early recovery and early return to work..
BICMA considers that restrictive conditions imposed by either side limiting the carrying out of needs assessments to the use of specific providers is contrary to the Rehabilitation Code and Protcol. BICMA proposed guidance is that as long as providers are suitably experienced and are working to approved standards such as those published by CMSUK (Case Management Society UK) they should be acceptable....
BICMA foresaw the need for recognised professional standards in case management and promoted the development of such standards. BICMA has also promoted the use of a standard agreement to ensure that recommendations made in an INA are put into effect.(The BICMA Agreement)
BICMA now calls for the development of standards for the procedure and selection of rehab providers that insists upon:
1. Transparency of commercial arrangements if any between referrer and
provider
2. Freedom of choice of provider subject to compliance with minimum standards such as CMSUK , BABICM, or similar
3. Mediation that provides for resolution of any dispute about the provider or the implementation of recommendations following the needs assessment within 14 days of the dispute arising.
BICMA. April 2005
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