Post-Payment Examination

Post-Payment Random and Targeted Examination

Guidelines for Random Examinations

• The selection of accounts for a random examination will be done on the basis of recognized random selection techniques and the use of appropriate computer software to accomplish this objective.
• The number of accounts selected for examination will be sufficient to meet the objective of providing LAO with the level of confidence required to meet a predetermined statistical sampling error tolerance rate.
• To support the veracity of the random selection process, the random selection process will be sufficiently documented on each occasion so that a proper audit trail is provided. These records shall be retained in accordance with the records keeping policies of LAO.
• For each account that is subject to a random examination, LAO will send the lawyer, by regular mail, a request to provide supporting documentation related to the account within thirty (30) days.
• The lawyer's failure to provide the requested supporting documentation in response to an initial request will, after thirty (30) days from the date of the initial request, result in a second request, by regular mail, for the required documentation to be produced within fifteen (15) days.
• A lawyer may be granted an extension of the time to provide documents sought under either an initial letter of request or a subsequent letter of request where the basis for the request of an extension of time is reasonable under the circumstances. These circumstances could include:
  
  • The scope and nature of the additional documents requested;
  • Circumstances in relation to the lawyer's practice;
  • Where other extraordinary circumstances exist.
• A lawyer's failure to provide all of the required documentation in response to a second request for documentation, or as applicable at the conclusion of an extension period granted by LAO, will result in the application of the terms of the "Failure to Respond Policy".
• Where a lawyer has failed to reply to a request for production of documentation in regard to three successive random audits, LAO may impose a cessation of the lawyer's privileges to use Legal Aid Online to claim future payments for accounts, and the lawyer will be required to provide full account details for examination before payment.
• On receipt of the documentation and explanations provided by the lawyer, an examiner will review the information and will identify any errors made in the lawyer's account.
• Errors identified in the course of an examination that total less than $35.00 will not be recovered or refunded. All errors of $35.00 or greater will be recovered or refunded.
• The results of each random examination of a lawyer's account will be reported to the lawyer by regular mail.
• Where LAO seeks to recover money from the lawyer, corrections will be made by way of an offset charge against any future account submitted for payment.
• Where billing errors result in underpayments of more than $35.00 additional payment will be made to the lawyer.
• The post-payment examiner will assess whether or not an adjustment is required in respect to a contribution agreement with a client and provide Client Account Services with the information so that the appropriate adjustments can be made to the client's account.
• LAO will provide the lawyer with advice and instruction where an error is detected in order to help the lawyer submit bills accurately and quickly.
• A lawyer may seek a reconsideration of a decision arising from these policies, or may appeal a decision arising from these policies in accordance with the "Reconsideration / Appeal Policy".

Guidelines for Targeted Examinations

• A targeted examination may be initiated where a random examination identifies issues that support an expanded scrutiny of accounts paid to a lawyer, or where the nature and / or extent of errors identified suggest that there are merits to conducting a review of additional accounts submitted by the lawyer and may include such factors such as:
  
  • Complaints;
  • Repeated pattern of errors or high incidence of errors;
  • Disparity in account information in comparison to a peer group;
  • High billing amounts.
• For each account that is subject to a targeted examination, LAO will send the lawyer, by regular mail, a request to provide supporting documentation related to the account.
• A lawyer's failure to provide the requested supporting documentation in response to an initial request made by LAO will, after thirty (30) days from the date of the initial request, result in a second request, by regular mail, for the required documentation to be produced within a specified number of days, depending on the number of files under examination.
• A lawyer may be granted an extension of the time to provide documents sought under either an initial letter of request or a subsequent letter of request where the basis for the request of an extension of time is reasonable under the circumstances. These circumstances could include:
  
  • The scope and nature of the additional documents requested;
  • Circumstances in relation to the lawyer's practice;
  • Where other extraordinary circumstances exist.
• A lawyer's failure to provide all of the required documentation in response to a second request for documentation, or as applicable at the conclusion of an extension period granted by LAO, will result in the application of the terms of the "Failure to Respond Policy".
• On receipt of the documentation and explanations provided by the lawyer, an examiner will review the information and will identify all errors made in the lawyer's account, if any.
• Cumulative errors identified in the course of an examination that are less than $100.00 will not be recovered or refunded. All errors of $100.00 or greater will be recovered or refunded.
• Where LAO seeks to recover money from the lawyer, corrections will be made by way of an offset charge against any future account submitted for payment.
• Where billing errors result in underpayments of more than $35.00 additional payments will be made to the lawyers.
• The post-payment examiner will assess whether or not an adjustment is required in respect to a contribution agreement with a client and provide Client Account Services with the information so that the appropriate adjustments can be made to the client's account.
• The detection of errors in a targeted examination may result in an investigation in circumstances where the nature and / or extent of errors identified suggest a significant lack of care in preparing the accounts, advertent errors, or other factors that suggest that merit exists for a closer scrutiny of the lawyer's accounts.
• The results of each targeted examination of a lawyer's account will be reported to the lawyer by regular mail.
• A lawyer may seek a reconsideration of a decision arising from these policies, or may appeal a decision arising from these policies, in accordance with the "Reconsideration / Appeal Policy".

Failure to Respond - Random and Targeted Examinations

Guidelines
For each account that is subject to a random audit or targeted examination, LAO will make an initial request to the lawyer, by regular mail, to provide LAO with supporting documentation related to the account(s). Where the lawyer fails to respond to an initial request for documentation or refuses to provide all of the required documentation, the following guidelines will apply.

• The lawyer's failure to provide the requested supporting documentation in response to an initial request will, after thirty (30) days from the date of the initial request, result in a second request, by regular mail, for the required documentation to be produced within fifteen (15) days.
• A lawyer may be granted an extension of the time to provide documents sought under either an initial letter of request or a subsequent letter of request where the basis for the request of an extension of time is reasonable under the circumstances. These circumstances could include:
  
  • The scope and nature of the additional documents requested;
  • Circumstances in relation to the lawyer's practice;
  • Where other extraordinary circumstances exist.
• A lawyer's failure to provide all of the required documentation in regard to three (3) consecutive examinations may result in a referral of the matter to the Investigation department.
• Where a lawyer has failed to provide all of the required documentation in regard to three (3) consecutive examinations, the Investigations department may impose a cessation of the lawyer's privileges to use Legal Aid Online to claim future payments for accounts.
• Any monetary recovery sought from a lawyer will be made by way of an offset charge against any future account submitted for payment by the lawyer.
• In the event that a lawyer does not make a request for payment of a new account within a six-month period and LAO is unable to satisfy an outstanding recovery, LAO will pursue a recovery of the account subject to the examination by other legal means.
• The amount of recovery sought will be increased by the cost of any disbursements incurred in the pursuit of a recovery.
• After every appeal process has been exhausted, the Manager, Post-Payment Examination will assess whether or not an adjustment is required in respect to a contribution agreement with a client and make appropriate adjustment(s).
• The Investigation department will advise the area director of the lawyer's continuing failure to provide documentation and will recommend that the lawyer be considered for removal from the panel.
• A lawyer may seek a reconsideration of a decision arising from these policies, or may appeal a decision arising from these policies, in accordance with the "Reconsideration / Appeal Policy".
• A lawyer's future ability to use Legal Aid Online will be considered in relation to whether or not compliance has been achieved from the lawyer.

Recovery of Over-Payment Policy

Guidelines
Where the lawyer has failed to respond to an initial request for documentation or refuses to provide all of the required documentation, the following guidelines apply.

• A lawyer's failure to provide all, or any, of the required documentation in response to a second letter of request for documentation, or at the expiry of an extension period granted by LAO may result in a full or partial recovery of the amount paid on the account that is the subject of the random or targeted examination. It may also result in the referral of the matter to the Investigations department.
• The amount to be recovered from the lawyer may be predicated on the nature of the account information submitted, the lack of documentation to support the entries made on the account, or any other circumstances that may question the accuracy or the veracity of the account information.
• The Manager, Post-Payment Examination may impose a cessation of the lawyer's privileges to use Legal Aid Online to claim future payments for accounts during the course of continuing non-compliance with a request made for documentation. The Manager will advise the Director, Lawyer Services and Payments of the decision and the lawyer will be required to provide full account details for examination before payment.
• The financial recovery sought from a lawyer will be made by way of an offset against any future account submitted for payment by the lawyer.
  
  • If the lawyer produces the requested documentation within sixty (60) days after the offset has been made, the amount will be refunded to the lawyer.
  • If the lawyer produces the requested documentation sixty (60) days after the offset has been made, LAO has the discretion to decide whether the amount will be refunded to the lawyer.
  • Where the lawyer has been granted an extension to produce the documentation, LAO has the discretion to decide whether the offset charge will be refunded to the lawyer.
• If a lawyer does not make a request for payment of a new account within a reasonable time period and LAO is unable to satisfy its attempt to recover the outstanding amount, LAO will pursue a recovery of the account by other legal means.
• The amount of recovery sought will be increased by the costs of any disbursements incurred in the pursuit of a recovery.
• LAO will advise the area director of the lawyer's continuing failure to provide documentation and will recommend that the lawyer be considered for removal from the panel of lawyers available to accept legal aid certificates.
• A lawyer may seek a reconsideration of a decision arising from these policies, or may appeal a decision arising from these policies, in accordance with the "Reconsideration / Appeal Policy".

Underbilling Payment Policy

Guidelines
In each account that is subject to a random examination or targeted examination, LAO may identify situations where the lawyer has underbilled for fees or disbursements, or both. The following guidelines will apply in these circumstances.

• The post-payment examiner will identify all situations in a random or targeted examination where the lawyer has underbilled based on an examination of documentation provided by the lawyer and a review of the applicable tariff rates.
• A payment will not be made where the amount payable to a lawyer is below$35.
• If the lawyer produces the requested documentation sixty (60) days after the offset has been made, LAO has the discretion to decide whether amounts found to be under-billed will be refunded to the lawyer.
• In circumstances where LAO does not make a payment to the lawyer in respect of underbilled fees or disbursements, LAO will advise the lawyer, by regular mail, about the amounts that would otherwise have been paid and the reasons that the payment is not being made.
• A lawyer may seek a reconsideration of a decision arising from these policies, or may appeal a decision arising from these policies, in accordance with the "Reconsideration / Appeal Policy".

Reconsideration/Appeal Policy

Guidelines
Where a lawyer makes a request for reconsideration of a decision made in respect to a random or targeted examination, the manager will review each request. The following guidelines will apply in these circumstances.

• A lawyer's request for reconsideration shall be made in writing and include documentation in support of the representations made.
• The manager will review the lawyer's request for reconsideration and will assign the matter to an examiner.
• The examiner shall review all of the relevant information made available and will conclude the review by recommending a decision. The recommended decision will be forwarded for the manager's approval.
• The examiner may request additional documentation or explanations from the lawyer, as necessary, to assist in the review of the request for reconsideration.
• Where, in the course of the review of information provided by the lawyer it is determined that merit exists for a closer scrutiny of information, the matter may be referred to the Investigations department.
• The manager will review the decision recommended by the examiner and either ratify the recommended decision or vary it as appropriate.
• Where the reconsideration conducted by the examiner results in a monetary change that is less than $35.00 (excluding GST), no payment will be made to the lawyer nor will an amount be recovered from the lawyer.
• The lawyer will be advised, by regular mail, of the results of his / her request for reconsideration, including an explanation of the decision.
• A lawyer may seek a reconsideration of a decision ratified by the manager by a letter addressed to the Director, Lawyer Services and Payments, with reasons and documentation to support the request for further reconsideration.
• The director will take steps to review relevant documentation and explanations and make a decision.
• Where the reconsideration conducted by the director results in a monetary change that is less than $35.00 (excluding GST), no payment will be made to the lawyer nor will an amount be sought from the lawyer.
• The lawyer will be advised, by regular mail, of the results of his/her request for reconsideration, including an explanation of the decision.
• Where a lawyer remains dissatisfied with the decision of the director, the lawyer may appeal to an assessment officer.

Appeal to an Assessment Officer
Where LAO receives a notice made pursuant to a lawyer's appeal to an assessment officer appointed under section 90 of the Courts of Justice Act, the Manager, Post-Payment Examination will take measures to:

• Ensure that the notice information is entered into LAO's database system in relation to the relevant account for the lawyer;
• Forward the notice documents to the General Counsel;
• Maintain oversight of the progress of the appeal process and duly note the progress of the appeal in the database system;
• Record the results of a final determination made pursuant to the appeal process.