Or. Admin. Code § 836-043-0170 - Premium Audit Hearings
(1)
This rule establishes the procedure for an insured to request a hearing to
dispute the results of an audit, as described in a final premium audit billing
issued by an insurer to the insured, pursuant to ORS
737.318(3)(d)
and 737.505(4) to
(5). If an insured wants to request a
hearing, then the insured must send a written request for a hearing to the
Division of Financial Regulation. The Division of Financial Regulation must
receive the request not later than the 60th day after the insured received the
final premium audit billing. For the purpose of determining the date of receipt
of a final premium audit billing sent to the insured by mail when the receipt
date is unknown to the insured, the date of receipt shall be presumed to be
three days after the postmark date, or three days after the date of mailing, if
the postmark is illegible or unavailable.
(2) If the Division of Financial Regulation
timely receives the insured's request for a hearing, the Division of Financial
Regulation will send or make available to the insured a petition form. In the
petition, the insured must explain why it believes the billing is incorrect and
describe the actions the insured wants the director to take to correct the
matter. The petition, along with a complete copy of the final premium audit
billing, must be received by the Division of Financial Regulation not later
than the 60th day after the date the Division of Financial Regulation received
the insured's request for a hearing.
(3) For the purposes of computing time
periods specified in sections (1) and (2) of this rule, ORS
174.120 and
174.125 shall govern.
(4) If the Division of Financial Regulation
determines that the insured is entitled to a hearing, the Division of Financial
Regulation shall notify the insured and the insurer, and also the bureau if the
statements in the petition of the insured address the use of the bureau rating
system, that the insured is entitled to a hearing and the Division of Financial
Regulation has requested the Office of Administrative Hearings to schedule and,
if necessary, conduct a hearing. The Division of Financial Regulation shall
forward the insured's request for a hearing and petition to the insurer, and,
if helpful to decide the matter, the bureau.
(5) An insured may request the director to
stay the collection effort of an insurer on a final premium audit billing
during the pendency of an insured's request for a hearing, pursuant to ORS
737.505(5). The
application must allege and show good cause as required in 737.505 by providing
an explanation of the alleged errors for which the insured is requesting
relief. The stay must apply only to the disputed amount. The director shall not
decide whether to grant or deny the insured's request for a stay until after
the Division of Financial Regulation has timely received the insured's request
for a hearing and completed petition and determined that the insured is
entitled to a hearing. The director may delegate to the Office of
Administrative Hearings the authority to grant or deny the insured's request
for a stay.
(6) Subject to the
exception provided in section (7) of this rule, for purposes of ORS
737.318(3)(d)
and 737.505(4) to
(5), OAR
836-043-0110 and this rule, the
final premium audit billing of an insured is the first document issued by the
insurer to the insured after the insurer's initial or revised audit of the
insured that contains all of the elements specified in this section. Failure by
the insurer to include any of the elements renders the billing incomplete as a
final premium audit billing for purposes of ORS
737.318 and
737.505 and renders the debt
uncollectible until all elements are included. An invoice issued by an insurer
based on a payroll report without having performed an audit is not considered a
final premium audit billing. The elements are as follows:
(a) The results of the audit;
(b) If the final premium audit billing is
based on an initial audit, the amount of the difference between the estimated
standard premium reported by the insured for the entire policy period and the
final standard premium calculated after the policy period is over, pursuant to
the audit;
(c) If the final premium
audit billing is based on a revised audit, the amount of the difference between
the final standard premium calculated after the policy period is over, pursuant
to the initial audit, and the final standard premium, calculated pursuant to
the revised audit;
(d) If the final
premium audit billing is based in whole or in part on a determination by the
insurer that one or more persons are employees rather than independent
contractors, then the name of each person, a description of the positions or
tasks of each named person, and the basis for the determination;
(f) The front page of the billing bears the
title "Final Premium Audit Billing."
(7) If, after performing an audit of an
insured, the insurer issues both a statement of the insured's account and a
letter to the insured that explains the audit and states the amount of the
difference, the statement of account and the letter together are considered to
be the final premium audit billing and:
(a)
The insurer may provide the notification required in ORS
737.318 and OAR
836-043-0110 either in the
statement of account or in the letter; and
(b) If the statement of account and the
letter are received separately, the 60-day period within which the director
must receive the request for a hearing begins upon receipt by the insured of
the later-received document.
(8) Unless otherwise provided by statute or
rule, the director shall dismiss an insured's request for a hearing if:
(a) The director does not receive the
insured's written request for a hearing within the required
timeframe.
(b) The director does
not receive the insured's completed petition within the required
timeframe.
(c) The audit results in
changes that affect a future policy period, but does not result in changes to
the policy period audited.
(d) The
director does not have jurisdiction in the matter, including, but not limited
to, the following circumstances:
(A) The
billing only addresses changes to the workers' compensation insurance coverage
for an insured's employees who are not Oregon subject workers.
(B) The billing is based on an estimate of
compensation paid by the insured to its employees who are Oregon subject
workers and not on actual audit results.
(C) The billing is based on the assignment of
an experience rating modification by the bureau, in accordance with the
experience rating plan adopted under OAR
836-042-0015.
Notes
Statutory/Other Authority: ORS 737.318 & 731.244
Statutes/Other Implemented: ORS 737.318 & 737.505
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