OAR 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; (e) The notice required by ORS 737.318(3)(d) and OAR 836-043-0110; and (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.