Mount Sinai Hospital Benefits - Ontario Nurses' Association

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IN THE MATTER OF AN ARBITRATION
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BETWEEN:
MOUNT SINAI HOSPITAL
(The “Hospital”)
and
ONTARIO NURSES’ ASSOCIATION
(The “Union”)
Individual grievance of P.J. dated March 30, 2010
SOLE ARBITRATOR: John Stout
APPEARANCES:
FOR THE HOSPITAL:
Shane Smith, Counsel
Barbara Griffin, Manager, Compensation and Benefits
Leslie Rodgers, Director of Human Resources
FOR THE UNION:
John D’Orsay, Labour Relations Officer
Marie Haase, Labour Relations Officer
Patti Lalla, Bargaining Unit President
P. J., Grievor
HEARING HELD IN TORONTO, ONTARIO, ON JULY 12, 2010
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AWARD
I was appointed by the parties to hear and determine the individual
grievance of P.J. (the “Grievor”) dated March 30, 2010 alleging failure of the
Hospital to provide or continue to provide benefit coverage (the “Grievance”). The
dispute centers on the provision of private nursing care services under the
Hospital’s extended health and dental benefit plans. The issue to be determined
in this award is whether the level of benefits under the Hospital’s extended health
and dental benefit plans was decreased when the Hospital changed carriers in
February 2010.
The relevant provision of the Collective Agreement is article 17.03 which
provides as follows:
17.03 The Hospital may substitute another carrier for any of the foregoing
plans (other than OHIP) provided that the level of benefits conferred
thereby are not decreased. The Hospital will advise the Union of any
change in carrier or underwriter at least sixty (60) days prior to
implementing a change in carrier. The Hospital will provide the Union with
a summary document outlining the differences, if any, between levels of
benefits provided by the existing and new carrier plans. When the Hospital
is made aware, the Hospital will provide the Union with full details of any
changes made by an existing carrier to current plan provisions.
THE FACTUAL BACKGROUND
The parties provided a number of agreed upon documents and an Agreed
Statement of Facts. The Hospital also called two witnesses to testify.
i. The Agreed Facts
The Agreed Statement of Facts is set out below:
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The following facts, which set out the background regarding the change in
carrier from Sun Life Financial to Great-West Life, are agreed to by the
parties for the purposes of the hearing before Arbitrator John Stout in
respect of the above referenced matter:
1. Mount Sinai Hospital (the ‘Hospital’) issued a Request for Proposal
in respect of, inter alia, extended health and dental benefits for its
employees in August, 2009. A copy of this REP is Exhibit 3.
2. At the time the REP was released, Sun Life Financial was the
administrator of the Hospital’s extended health and dental benefit
plans. The terms and conditions of the plan for members of the
ONA bargaining unit were out in the Sun Life booklet which is
Exhibit 10.
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3. One of the listed selection criteria in the REP was that the
successful bidder would replicate the existing plan design (meaning
the plan design set out in Exhibit 10). the second page 1 in
Exhibit 3.
See
4. There were a number of respondents to the REP. One of the
respondents was Great-West Life (‘GWL’).
5. GWL was ultimately selected by the Hospital the successful
respondent to the REP. This was formally communicated to GWL
in a letter dated October 22, 2009 which is Exhibit 12. Included in
this letter is confirmation from the Hospital that the GWL plan is to
duplicate the current plan design (meaning the Sun Life plan design
as out in Exhibit 10).
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6. GWL replaced Sun Life as the administrator of the Hospital’s
extended health and dental benefits effective Eebruary 1, 2010.
The terms and conditions of the plan administered by GWL are set
out in the GWL booklet, which is Exhibit 11.
7. DNA does not dispute that it was a condition of the RFP process
established by the Hospital that any new plan would replicate the
coverage out in Exhibit 10.
set
as
ii. The Agreed Documents
In addition to the Grievance (Ex. 1) and Collective Agreement (Ex. 9), the
parties provided the following documents:
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1. Correspondence from Sun Life to P.J. dated April 14, 2008 with an
attached Consultative Nursing Evaluation Report (Ex. 2).
2. Mount Sinai Hospital Request for Proposal dated August 2009 (Ex.
3)
3. Memo from Mount Sinai Hospital Human Resources to Group
benefit Plan members-DNA re: Carrier Change (Ex. 4)
4. Documents relating to the reassessment process of Great-West
Life (Ex. 5)
5. Correspondence from Great West Life to P.J. dated March 8, 2010
(Ex. 6)
6. Correspondence from Geoff Maier, Senior Account Executive,
Group Benefits, Great-West Life dated March 25, 2010 with
attached adjudication notes (Ex. 7)
7. Nursing Questionnaire completed by Dr. Samji dated May 23, 2009
(Ex. 8)
8. Sun Life Financial Mount Sinai Hospital, D.N.A. Extended Health
and Dental Group Plan (Ex. 10) (the “Sun Life Plan”)
9. Great-West Life Mount Sinai Hospital, O.N.A. Group Benefit Plan
(Ex. 11) (the “Great-West Life Plan”)
10. Correspondence from Barb Griffin, Manager Compensation &
Benefits Mount Sinai Hospital to Geoff Maier dated October 22,
2009 (Ex. 12)
11. Email correspondence from Dr. Walker to Jennifer Hunter, Sun Life
dated May 15, 2009 (Ex. 13)
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iii.
Relevant undisputed facts found within the agreed upon documents
The Grievor’s spouse suffers from ALS (Lou Gehrig’s Disease). The
disease is well advanced and the Grievor’s spouse is on a ventilator. He requires
health care services that would normally be provided in an Intensive Care Unit.
The Grievor submitted a claim on behalf of her spouse for private nursing
care services under the Hospital’s extended health and dental benefit plans. A
Consultative Nursing Evaluation Report from Bayshore Home Health
(“Bayshore”) was submitted in support of the claim.
Sun Life Financial (“Sun Life”) was the carrier who administered the
Hospital’s extended health and dental benefit plans at the time that the Grievor
submitted her claim. On April 14, 2008 Sun Life wrote to the Grievor and based
on the medical information received, approved the claim for the private nursing
care services. Sun Life approved the services of an RN for 24 hours, 7 days a
week. The e4ense incurred for the private nursing care services was
reimbursed at 100%. In the letter approving the claim, the following was indicated
regarding the coverage:
“Your Group Health Plan does provide for the services of a
Registered Nurse when the services are medically necessary and
prescribed by a physician. As well, the duties being performed must
require the expertise of a registered nurse.”
In February 2010, Great-West Life replaced Sun Life as administrator of
the Hospital’s extended health and dental benefit plans. The Grievor was
required to submit documentation to Great-West Life to support her ongoing
claim for private nursing care services. On February 19, 2010 the Grievor
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submitted a Nursing Care Health Assessment Form to Great-West Life in support
of her claim.
On March 8, 2010 Great-West Life denied the claim indicating as follows:
Your plan with Great-West Life allows for nursing services for inhome
nursing care provided by Registered Nurses or Registered
Practical Nurses if it represents acute, convalescent or palliative
care conditions only. Acute care is defined as the active
intervention for the treatment of a short, sudden course of illness.
Convalescent care includes rehabilitation for a condition that will
return an individual to their previous level of health following illness
or injury. Palliative care is the treatment of symptoms in the final
stages of a terminal condition.
According to the medical information provided, S.’s condition is
chronic in nature. A chronic condition requires nursing or supportive
care over a prolonged period for individuals who have lost or never
acquired their full functional abilities. However, this type of nursing
care is not a covered benefit of your plan. Therefore, any submitted
or future nursing expenses will not be eligible for reimbursement by
your plan.”
On March 25, 2010, Geoff Maier, on behalf of Great-West Life, wrote to
the Grievor indicating that while the claim was denied, it would be honored,
outside the terms of the contract, for charges incurred from January 24 to March
12, 2010.
iv.
The Benefit Plan Documents
The relevant portions of the two benefit plans documents are as follows:
a) The Sun Life Plan
Extended Health Provision
M-1
Exclusions
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No Benefit is payable for
• Expenses for which benefits are payable under a Workers’
Compensation Act, Workplace Safety and Insurance Act or similar
statute,
• Expenses incurred due to intentionally self-inflicted injuries,
• Expenses incurred due to civil disorder or war, whether or not war
was declared,
• Expenses for services and products, rendered or prescribed by a
person who is ordinary a resident in the patient’s home or who is
related to the patient by blood or marriage,
• Expenses for which benefits are payable under a government plan,
• Expenses for benefits which are legally prohibited by the
government from coverage,
• Out-of-province
treatment or surgery.
expenses
for elective (non-emergency) medical
M-2
Extended
Health —
Hospital
Benefit
Exclusions
No benefit is payable for
1. chronic or custodial care facilities,
2.
incurred under any of the conditions listed on the
Extended Health Provision page as an Exclusion.
expenses
P-I
Extended
Health —
Supplementary
Health Care Benefit
Q-1
Eligible
Expenses
To be eligible, the
treatment of
otherwise specified.
expenses
disease
must be medically necessary for the
or injury and prescribed by a physician, unless
Eligible
of
expense
expenses
are the reasonable and customary charges for the items
listed below unless a maximum has been indicated.
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1. unlimited services of a registered nurse (R.N.) or registered
practical nurse (R.P.N.) when provided in the patient’s home
or in a hospital. To qualify as an eligible expense, the
patient’s treatment must require the level of expertise of an
R.N. or R.P.N. If an R.P.N. is only required but a R.N. rate
was provided only the R.P.N. rate will be applied. All
expenses for nursing services must be pre-approved by Sun
Life.
Q-2
Exclusions
No benefit is payable for
1. expenses for the services of a homemaker, licensed practical nurse
(L.P.N.) or certified nursing assistant (C.N.A.)
2. expenses for items purchased solely for athletic use,
3. dental expenses, except those specifically provided under Eligible
Expenses for treatment of accidental injuries to natural teeth,
4. utilization fees which are imposed by the provincial health care plan
for the use of a service,
5. expenses incurred under any of the conditions listed on the
Extended Health Provision page as an Exclusion.
b) The Great-West Life Plan
Q-4
Benefit Summary
Healthcare
Covered expenses will not exceed customary charges
Basic Expense Maximums
In-hospital and Home Nursing Care
Unlimited
IN-CANADA HOSPITAL
Covered Expenses
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• Convalescent care for a condition that will significantly improve as a
result of the care, provided it follows a 5-day confinement for acute
care and begins within 14 days after you are discharged from
hospital
Limitations
Except to the extent otherwise required by law, no benefits are paid for:
• Chronic or custodial care
H EALTHCARE
Covered Expenses
• In-hospital and home nursing services of a registered nurse (R.N.)
or registered practical nurse (R.P.N.) who is not a member of your
family, when services are provided in Canada, but only if the patient
requires the specific skills of a trained nurse
Limitations
Except to the extent otherwise required by law, no benefits are paid for:
• Chronic or custodial care
v. Oral
testimony
Dale Fagan, a Senior Best Practice Medical Consultant with Sun Life
testified with respect to the Sun Life Plan that was in place prior to February 2010
and the Grievor’s claim.
Ms. Fagan testified that
she
had reviewed and was familiar with the Sun
Life Plan. She indicated that some of the wording and particularly the wording
regarding private nursing care services was not “Sun Life standard wording”.
According to Ms. Fagan unlimited coverage is unusual and not standard. The
standard coverage for Sun Life is a $25,000 maximum per 3 calendar years. In
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this case, the claim was approximately $10,800.00 per week for private nursing
care services.
During her testimony, Ms. Fagan reviewed the exclusions under the Sun
Life Plan. According to Ms. Fagan, the exclusion found in the Extended Health -
Supplementary Health Care Benefit section of the Sun Life Plan at page Q-4 is in
reference to the general exclusions found on the Extended Health Provision at
page M-2. This exclusion provides as follows:
5. expenses incurred under any of the conditions listed on the Extended
Health Provision page as an Exclusion.
Ms. Fagan also indicated that the exclusions under the Extended Health —
Hospital Benefit section of the Sun Life Plan at page P-I did not apply to the
private nursing care services benefits found in the Extended Health-
Supplementary Health Care Benefit section of the Sun Life Plan at page Q-2.
Specifically, Ms. Fagan indicated that the following exclusion did not apply to the
private nursing care services benefit:
I. chronic or custodial care facilities
In terms of the process for adjudicating the claim for private nursing care
services, Ms. Fagan indicated that a plan member would be directed to Bayshore
to perform an assessment. A claimant would provide all the relevant information
to Bayshore. Bayshore would then provide the claims officer with an assessment.
The claims officer then reviews the assessment to decide whether to approve the
claim. During this process, the claims officer may or may not consult with a
physician.
Ms. Fagan indicated that whether the condition of a patient is palliative or
acute is not relevant to assessing the claim for private nursing care services
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under the Sun Life Plan. According to Ms. Fagan the duties of the nurse and
what they perform are the relevant factors. She went on to state that it was of no
significance whether the care being provided was chronic or convalescent unless
such care was being provided in a chronic care facility or the chronic wing of a
hospital.
Ms. Fagan indicated that she would have approved the Grievor’s claim
solely on the basis of the Bayshore assessment. Ms. Fagan also identified an
email dated May 15, 2009 from Dr. Walker who indicated as follows:
“I agree this looks like a reasonable situation to continue the nursing up to
24 hr per day, 7 days per week to wrap around the 40 hours per week
provided by CCAC in Ontario. 62 year old man with ALS is on a ventilator
for over a year. G-tube fed, unable to verbally communicate due to
tracheotomy and is DNR. The ventilator is obviously keeping him alive and
with good nursing care he will live for awhile yet. I don’t see how we can
reduce it. I suppose you could ask for a confirmation that his status is
unchanged. I would not ask for a formal nursing consultation.”
Kim Gerrie, Director of Group Benefits with Great-West Life also testified.
Mr. Gerrie testified that the Great-West Plan was an administrative services only
(ASO) contract with a stop loss arrangement. As a result, the Hospital is
responsible for payment of any individual claim up to $20,000.00. Any individual
claim over $20,000.00 is insured. Mr. Gerrie advised that private nursing care
services were generally a benefit that assists persons recovering in a
convalescence situation and in some cases a palliative situation. Mr. Gerrie
indicated that the wording in the Great-West Life Plan was the normal usual
wording for private nursing care services, although he conceded that unlimited
coverage is rare. He went on to indicate that it would be highly unusual to have
unlimited private nursing care services without any exclusion.
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Mr. Gerrie testified about the Grievor’s claim with Great-West Life.
According to Mr. Gerrie, the claim was denied based on the Grievor’s spouse’s
condition being chronic. Mr. Gerrie referenced the limitation found at page 20 of
the Great-West Plan relating to “chronic or custodial care”. Mr. Gerrie explained
that this is a very common limitation and the rationale supporting the limitation is
that the benefit is intended to supplement and not replace provincial healthcare.
Mr. Gerrie also explained that there could be other limitations in the Great-West
Plan. However, the adjudication process does not continue after an initial
limitation factor has been identified.
Mr. Gerrie identified what he described as a “similar but not the same
limitation” in the Sun Life Plan. Mr. Gerrie referenced the “Exclusions” found on
page P-i of the Extended Health -
Hospital
Benefit. Mr. Gerrie indicated that it
was expected that the normal limitations found in the Great-West Life Plan would
also be found in the Sun Life Plan. Mr. Gerrie pointed to the “Exclusions under
the Sun Life Plan’s Extended Health -
Hospital
Benefit at page P-I (“chronic and
custodial care facilities”) as being incorporated as an exclusion applying to the
private nursing care services benefit found in the Extended Health -
Supplementary Health Care benefit at page Q-4. Specifically, he pointed to the
following language as incorporating any other exclusion in the Extended Health
benefits component:
5. expenses incurred under any of the conditions listed on the Extended
Health Provision page as an Exclusion.
During cross-examination Mr. Gerrie agreed that he reviewed the Request
for Proposal (REP) that was provided by the Hospital. The REP provided a
general outline of the Sun Life Plan and included claims experience data. It was
pointed out to Mr. Gerrie that the claims experience data for private nursing care
services applicable to DNA members went from 0 in 2007, to $141,000 in 2008
and $265,894 in 2009. Mr. Gerrie acknowledged the numbers but also indicated
that his earlier review was in relation to the aggregate numbers found in the RFP
and not any specific claim experience. Mr. Gerrie also indicated that he did not
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acquire a copy of the Sun Life Plan until a couple months before the effective
date for the Great-West Life Plan.
POSITION OF THE UNION
The Union submitted that the Hospital decreased the level of benefits
when it changed carriers from Sun Life to Great-West Life. The Union accepts
that the Hospital did not intend to decrease benefits. However, the Union argued
that is what has occurred in this situation. In particular, the Union suggested that
under the Sun Life Plan, the private nursing care services benefit did not include
any exclusion for chronic conditions. The Union pointed to the evidence of Ms.
Fagan as supporting their position. The Union argued that the interpretation of
Mr. Gerrie should be rejected as it is inconsistent with the interpretation of Sun
Life and the language found in the Sun Life Plan.
POSITION OF THE HOSPITAL
The Hospital submitted that the benefit for private nursing care services
was not decreased when they changed carriers. The Hospital argued that both
plans have a limitation for chronic care. The Hospital suggested that the
exclusions found in the Extended Health Provision at page M-2 of the Sun Life
Plan and any other applicable exclusion is incorporated into all the other
extended healthcare benefits, including private nursing care services under the
Extended Health - Supplementary Health Care Benefit. As a result the exclusion
of chronic or custodial care facilities under the Extended Health —
Hospital
Benefit at page P-I is applicable to the private nursing care services benefit in
the Extended Health —
Supplementary Health Care Benefit at page Q-2. It was
suggested that this interpretation is consistent with the principle of extended
health benefits supplementing government health services. The Hospital
suggested that the Union’s interpretation of the Sun Life Plan would be replacing
government medicare in a cost prohibitive manner. The Hospital suggested that
the evidence of Ms. Fagan was unreliable and not credible.
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DECISION
After carefully considering the evidence and submissions of the parties I
conclude, based on the particular facts of this case, the Grievance must be
allowed.
The issue to be decided is whether the level of benefits was decreased
when Great-West Life was substituted for Sun Life as the carrier for the
Hospital’s extended health and dental benefit plans. The determination of this
issue is dictated by comparing the level of benefits provided under each
respective carrier’s plan. More specifically, the issue focuses on comparing the
level of benefits for private nursing care services provided under each carrier’s
plan.
The clear language of the Sun Life Plan supports the Union’s position. The
Extended Health Provision includes a number of general exclusions. These
general exclusions are incorporated into the exclusions for specific benefits by
including the following language
“expenses incurred under any of the conditions listed on the Extended
Health Provision page as an Exclusion.”
See for example the exclusions found within the specific benefits at pages N-2,
0-1, P-i, Q-4, and QI-5.
The specific exclusion for chronic or custodial care facilities under the
Extended Health - Hospital Benefit found at page P-I has not been incorporated
as an exclusion that would apply to the private nursing care services benefit
under the Extended Health - Supplementary Health Care Benefit at page Q-2.
Ms. Fagan’s testimony regarding the application of the language under the
Sun Life Plan is consistent with my interpretation that the private nursing care
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enefit under the Sun Life Plan’s Extended Health - Supplementary Health Care
Benefit did not include any exclusion for chronic conditions.
The Great-West Life Plan clearly includes a limitation for chronic or
custodial care with respect to the private nursing care services benefit under their
plan. As indicated above, this limitation is not found under the Sun Life Plan.
Accordingly, the level of this benefit has been decreased when the carriers were
substituted.
I accept that providing unlimited private nursing care is not usual or
ordinary. I also acknowledge that the cost associated with this benefit is
extraordinary in the circumstances of this case. [-lowever, the clear language of
the Sun Life Plan and the manner in which it was applied indicates that this was
the level of benefit enjoyed prior to the carrier being changed to Great-West Life.
Finally, I was provided with no evidence or authority that would suggest
that providing unlimited private nursing care services under an insurance plan
without a limitation for chronic care was prohibited under the government
medicare program (OHIP).
For all the reasons stated above, I
make the following determinations:
• The level of the private nursing care benefit was decreased when the
carriers were substituted.
• I direct the Hospital to address the deficiency in the level of benefits for
private nursing care services provided under the Great-West Life Plan.
• I remit the matter of remedy and damages to the parties.
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In accordance with the parties’ request, I remain seized in the event there
is a dispute concerning the interpretation, application and implementation of this
award, and I remain seized of any remedy and claim for damages.
Dated at Toronto, Ontario this 1gth day of July 2010.
4 —
i/ri
John Stout - Arbitrator
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