38. (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 that are submitted with a treatment plan under subsection (2).  O. Reg. 281/03, s. 16 (1); O. Reg. 546/05, s. 14 (1). (1.1) An insurer is not liable to pay any expense in respect of medical benefits or rehabilitation benefits that was incurred before the insured person submits an application for the benefit that satisfies the requirements of subsection (2) unless the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates.  O. Reg. 546/05, s. 14 (2). (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 that complies with subsection (3), prepared by a member of a health profession or by a social worker; 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.  O. Reg. 281/03, s. 16 (2); O. Reg. 546/05, s. 14 (3). (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.  O. Reg. 281/03, s. 16 (2). (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.  O. Reg. 281/03, s. 16 (2). (3) The treatment plan shall include a statement by the person who prepared the plan, (a)  disclosing any conflict of interest that he or she has relating to the treatment plan; (b)  indicating that he or she has made reasonable inquiries to determine whether any person who referred the insured person to a person who will provide goods or services contemplated by the treatment plan has a conflict of interest relating to the treatment plan; and (c)  disclosing any conflict of interest that a person who referred the insured person to a person who will provide goods or services contemplated by the treatment plan has relating to the treatment plan.  O. Reg. 403/96, s. 38 (3); O. Reg. 546/05, s. 14 (4); O. Reg. 533/06, s. 7. (3.1) Revoked:  O. Reg. 546/05, s. 14 (5). (4) A lawyer or other representative who acts for the insured person in respect of the application or in respect of 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 treatment plan.  O. Reg. 403/96, s. 38 (4). (5) If a conflict of interest is disclosed under subsection (3) or (4), the insurer may, within 10 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.  O. Reg. 403/96, s. 38 (5); O. Reg. 546/05, s. 14 (6). (6) Subsection (5) does not apply if there is no other person within 50 kilometres of the insured person’s residence who is able to provide the goods or services from which the conflict of interest arises.  O. Reg. 403/96, s. 38 (6). (7) On receiving the application, the insurer shall promptly determine whether the insurer is required to pay for the goods and services contemplated by the treatment plan.  O. Reg. 403/96, s. 38 (7). (8) If no notice is given under subsection (5), the insurer shall give the insured person one of the following notices: 1.  A notice, i.  that discloses any conflict of interest the insurer has relating to the treatment plan, ii.  that describes the goods and services, if any, contemplated by the treatment plan that the insurer agrees to pay for, and iii.  that advises the insured person, if the insurer has not agreed to pay for all goods and services contemplated by the treatment plan, that the insurer requires the insured person to be examined under section 42 relating to the goods and services the insurer has not agreed to pay for. 2.  A notice advising the insured person that the insurer, i.  believes that the insured person may have an impairment to which a Pre-approved Framework Guideline applies, and ii.  requires the insured person to be examined under section 42 to assist the insurer in determining if the insured person has an impairment to which a Pre-approved Framework Guideline applies.  O. Reg. 281/03, s. 16 (4); O. Reg. 546/05, s. 14 (7). (8.1) A notice under subsection (8) must be given, (a)  within 10 business 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).  O. Reg. 281/03, s. 16 (4); O. Reg. 546/05, s. 14 (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 shall not take the position 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), the insurer shall pay for all goods and services provided under the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives the notice described in paragraph 1 of subsection (8).  O. Reg. 281/03, s. 16 (4); O. Reg. 546/05, s. 14 (9, 10). (9) If the insurer discloses a conflict of interest relating to the treatment plan, the insured person may, within 10 business days after receiving the notice under paragraph 1 of subsection (8), withdraw the application and submit a new application.  O. Reg. 403/96, s. 38 (9); O. Reg. 281/03, s. 16 (5); O. Reg. 546/05, s. 14 (11). (10) Subsection (9) does not apply if there is no other person within 50 kilometres of the insured person’s residence who is able to provide the goods or services from which the conflict of interest arises.  O. Reg. 403/96, s. 38 (10). (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.  O. Reg. 281/03, s. 16 (6). (12), (12.1) Revoked:  O. Reg. 546/05, s. 14 (12). (12.2) If an insurer gives a notice described in paragraph 2 of subsection (8), the insured person may submit a treatment confirmation form under section 37.1 and, pending the insurer’s determination, may receive goods and services in accordance with the Pre-approved Framework Guideline and such ancillary goods and services as the insurer believes to be appropriate for the insured person’s impairment.  O. Reg. 546/05, s. 14 (13). (12.3) Revoked:  O. Reg. 546/05, s. 14 (13). (13) Within five business days after receiving the report of an examination under section 42, the insurer shall give a copy of the report and the insurer’s determination to the insured person and to the health practitioner who approved the treatment plan.  O. Reg. 546/05, s. 14 (13). (14) The determination of the insurer shall specify, (a)  the goods and services contemplated by the treatment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the reasons for the insurer’s decision, in the case where the insurer gave a notice referred to in paragraph 1 of subsection (8); or (b)  whether the insurer has determined that the insured person has an impairment to which a Pre-approved Framework Guideline applies and the reasons for the insurer’s decision, in the case where the insurer gave a notice referred to in paragraph 2 of subsection (8).  O. Reg. 546/05, s. 14 (13). (15) If an insured person fails or refuses to comply with subsection 42 (10), the insurer may make a determination that the insured person is not entitled to the goods and services contemplated by the treatment plan.  O. Reg. 546/05, s. 14 (13). (16) If an insured person subsequently complies with subsection 42 (10), the insurer shall reconsider the insured person’s claim and make a determination under this section.  O. Reg. 546/05, s. 14 (13). (17) If the insurer fails to provide a copy of the report of the examination under section 42 or its determination in respect of the claim by the day determined under subsection (17.1), (a)  the insurer shall pay for all goods and services provided in accordance with the treatment plan during the period commencing on that day and ending on the day the insurer gives the insured person the report or determination; and (b)  the insurer shall not take the position that the insured person has an impairment to which a Pre-approved Framework Guideline applies.  O. Reg. 546/05, s. 14 (13). (17.1) For the purposes of subsection (17), the day is determined as follows: 1.  If the attendance of the insured person was not required for the examination under section 42, the day is the 10th business day after the day the material required under subsection 42 (10) was provided. 2.  If the attendance of the insured person was required for the examination, the day is the 15th business day after the day the examination was completed or was required under paragraph 2 or 3 of subsection 42 (11) to be completed.  O. Reg. 546/05, s. 14 (13). (17.2) An insurer shall pay an expense in respect of medical or rehabilitation benefits that it has agreed to pay or that it is required under this section to pay within 30 days after receiving an invoice for the expense.  O. Reg. 546/05, s. 14 (13). (18) Revoked:  O. Reg. 546/05, s. 14 (13). (19) If, after giving notice under subparagraph 1 i of subsection (8), it comes to the attention of the insurer that a person described in subsection (3) or (4) has a conflict of interest relating to the treatment plan, the insurer may give the insured person notice requiring the insured person, within 10 business days after receiving the notice, to amend the treatment plan to remove the conflict of interest.  O. Reg. 403/96, s. 38 (19); O. Reg. 281/03, s. 16 (12); O. Reg. 546/05, s. 14 (14). (20) If the insured person does not comply with a notice under subsection (19), the insurer is not required to pay for any further expenses for goods or services from which the conflict of interest arises.  O. Reg. 403/96, s. 38 (20). (21) Subsection (20) does not apply if there is no other person within 50 kilometres of the insured person’s residence who is able to provide the goods or services from which the conflict of interest arises.  O. Reg. 403/96, s. 38 (21). (22)-(25) Revoked:  O. Reg. 281/03, s. 16 (13).