CONTENTS
Monday 18 October 1993
Expenditure Control Plan Statute Law Amendment Act, 1993, Bill 50, Mrs Grier / Loi de 1993 modifiant
des lois en ce qui concerne le Plan de contrôle des dépenses, projet de loi 50
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
*Chair / Président: Beer, Charles (York North/-Nord L)
Vice-Chair / Vice-Président: Eddy, Ron (Brant-Haldimand L)
Carter, Jenny (Peterborough ND)
Cunningham, Dianne (London North/-Nord PC)
*Hope, Randy R. (Chatham-Kent ND)
*Martin, Tony (Sault Ste Marie ND)
McGuinty, Dalton (Ottawa South/-Sud L)
*O'Connor, Larry (Durham-York ND)
*O'Neill, Yvonne (Ottawa-Rideau L)
*Owens, Stephen (Scarborough Centre ND)
*Rizzo, Tony (Oakwood ND)
*Wilson, Jim (Simcoe West/-Ouest PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Poole, Dianne (Eglinton L) for Mr Eddy
Sullivan, Barbara (Halton Centre L) for Mr McGuinty
Wessenger, Paul (Simcoe Centre ND) for Ms Carter
Also taking part / Autres participants et participantes:
Ministry of Health:
LeBlanc, Dr Eugene, executive director, negotiations secretariat
Wessenger, Paul, parliamentary assistant to the minister
Williams, Frank, deputy director, legal services
Clerk / Greffier: Arnott, Doug
Staff / Personnel: Gardner, Dr Bob, assistant director, Legislative Research Service
The committee met at 1542 in room 151.
EXPENDITURE CONTROL PLAN STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LE PLAN DE CONTRÔLE DES DÉPENSES
Consideration of Bill 50, An Act to implement the Government's expenditure control plan and, in that connection, to amend the Health Insurance Act and the Hospital Labour Disputes Arbitration Act / Projet de loi 50, Loi visant à mettre en oeuvre le Plan de contrôle des dépenses du gouvernement et modifiant la Loi sur l'assurance-santé et la Loi sur l'arbitrage des conflits de travail dans les hôpitaux.
The Chair (Mr Charles Beer): Good afternoon, ladies and gentlemen. We begin the first session of the standing committee on social development. I want first of all to report on a meeting of the subcommittee to deal with Bill 50, An Act to implement the Government's expenditure control plan and, in that connection, to amend the Health Insurance Act and the Hospital Labour Disputes Arbitration Act. You have a copy of the subcommittee's report before you.
Mr Larry O'Connor (Durham-York): I'd like to move that we accept the report.
The Chair: It's moved to accept the subcommittee's report. All in favour? Opposed? Carried.
In conjunction with that report, I would like to note that the advertisement, which everyone received a copy of last week, will appear in the daily newspapers on Wednesday of this week. For anyone who is watching who wants to make a submission to the committee, that will be in the newspapers and they can follow through with the address and so on that is there, as well as telephone numbers if they need further information.
We are gathered today to deal with Bill 50 and this afternoon we are going to hear from the parliamentary assistant, representatives from the ministry and the two critics. Without further ado, Mr Wessenger, welcome to the committee and please feel free to go ahead.
Mr Paul Wessenger (Simcoe Centre): I'll just make some preliminary remarks with respect to the bill on behalf of the minister. When the government introduced the Expenditure Control Plan Statute Law Amendment Act on June 14, we stated that one of the things we needed to do to preserve medicare was to take strong action to manage the high costs of the health care system.
During the second reading debate on July 26, the Minister of Health stated that Bill 50, as drafted, was consistent with our health reform strategy and that it would assist the government to meet its expenditure control plan and fiscal targets.
The Ministry of Health's expenditure control measures are about good management and allow us to achieve the goals of the health care reform: to shift emphasis from treating illness to preventing disease, promoting health and community care, and to create a better balance between the traditional health care system and the broader factors that influence health, such as income, housing and the environment. Medicare, we stipulated, must be affordable, sustainable and accessible and it must deliver to Ontarians health care that is not only effective and appropriate but of the highest quality.
As physicians account for about a quarter of our health care dollars, we needed to reopen talks with the Ontario Medical Association. Through the 1993 interim economic agreement, the OMA and the government have arrived at a mutually acceptable way to achieve not only the ECP targets of managing physician supply, ensuring a better distribution of physicians across the province and containing health care costs, but also the social contract targets for limiting physicians' pay. As a result of the agreement reached between the government and the OMA, there need to be significant changes to Bill 50.
The agreement changes the way Bill 50 would have assisted the government in reaching its overall fiscal savings from the health system. In its original form, Bill 50 had strong measures to control the supply of doctors, their payment and how often some of their services could be provided. Instead of moving forward with such measures, the OMA and the government have agreed to reach the fiscal targets through alternative and complementary methods. We are working together to find ways to decrease utilization of medical services without hurting health outcomes.
Under the terms of the agreement, OHIP expenditures in the next fiscal year will be $100 million less than they will be in the current fiscal year. The expenditures will be $140 million less in each of the following two fiscal years. This is a positive step forward. We now have a budgeted amount for billings; in other words, a hard cap. If partway through the year the billings exceed what they should be, doctors will not receive the full amount for the services they bill. Under the previous arrangement with the OMA, we had no mechanisms for staying within our targets. It was an open-ended system. Now we know exactly the maximum we will spend and we will stick to it.
Other elements of the OMA agreement allow for further savings and address physician resource issues. These initiatives require that there also be changes made to Bill 50. Let me break the bill down into three key sections and describe how the government proposes to amend them.
The first section of the bill enabled the government to override existing agreements in the health sector, where new ones had not been reached, to achieve the government's fiscal targets. We are proposing an amendment to section 1 to exclude all agreements arrived at on or after June 14, 1993.
I'll move to the third key section of the bill and simply state that we are not proposing any change to that section, which sets out that the Hospital Labour Disputes Arbitration Act will require parties to share the cost of arbitration in hospitals and nursing homes. At present, the government pays the full amount of these costs, which on average have been nearly half a million dollars every year.
We are, however, proposing new provisions be added to section 2 of Bill 50, which amends the Health Insurance Act. We are proposing changes to section 2 of Bill 50 in the following three areas: (1) health care fraud reporting by physicians, (2) third-party insured services, (3) interim restrictions on fee-for-service billings.
We believe these provisions will further assist the government to meet its expenditure control fiscal targets. We are proposing an amendment requiring that prescribed persons, such as health care practitioners, as defined in regulations, report cases of health card abuse and fraud. Physicians will be authorized to take into their possession any voluntarily surrendered invalid cards and be guaranteed that they cannot be sued by the person who surrendered the card.
On this point, I want to make it very clear that the ministry is committed to fighting health card fraud. We are pleased that the Ontario Medical Association has made such a strong commitment to join forces with the ministry to catch those who attempt to defraud the system with a card that does not belong to them or that they are ineligible to have.
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There has been a public outcry over allegations that many dollars are being wasted by people using health cards when they shouldn't be. The Provincial Auditor last year charged the ministry with not doing enough to control invalid or suspect cards. Over the last several months, the ministry has acted to deal with and reduce health card fraud. Among the things we have done, we have set up a toll-free line so that consumers, pharmacists and physicians can report suspected abuse. The ministry has hired a forensic accounting firm to advise us in the establishment and implementation of the appropriate investigative procedures. The ministry will also undertake to issue a new type of tamperproof health card, complete with new security controls and possibly a personal photograph.
Requiring doctors to report suspected health card abuse and fraud without fear of being sued will go some way in getting at some of the abuse of our health system. It is important to recognize that since doctors are one of the gatekeepers of our system, they should be active in fighting health card abuse. I am extremely pleased that they have agreed to assist the government in this exercise.
As part of our agreement with the OMA, the government committed to legislate that uninsured medical services required or requested by a third party will be the financial responsibility of the third party. At issue are those services that are being inappropriately billed to OHIP. Some examples of third-party requests include back-to-work notes and insurance companies' requests. In the past, for the sake of convenience, some of these services were billed to OHIP even though there was never an intention for OHIP to cover services such as these.
Regulations passed last year made it clear that these types of services would not be paid by OHIP, but they did give doctors the option of billing third parties or patients for such services. Since then, however, some doctors have had difficulty receiving payment from third parties. They either billed the patient, received no payment or found another insured service they could not provide. The proposed amendment makes it clear that third parties are liable to pay, either directly to the physician or by reimbursing the patient for services they request. The Ministry of Health will be working with the OMA to select an independent body to deal with any third-party disputes.
Patients will not pay for such things as examinations to determine eligibility for wheelchairs, prostheses, other Ministry of Health medical devices or the northern health travel grant program; completing documents or transmitting information required for admission to a hospital or other health facility, nursing home, home for the aged or charitable institution; completion of immunization certificates for admission to school or day care. In these circumstances, the health insurance plan would continue to pay the physician for providing these services to patients.
The third area of amendments relates to an attempt to better manage the province's physician resources. We are proposing an amendment that places limitations on the fee-for-service billing privileges for non-Ontario-trained, new-entrant physicians. These are to be temporary measures that are in effect only during the life of the new OMA-government agreement; that is, between August 1, 1993, and April 1, 1996.
For some time now, all the provinces have recognized the need for a national strategy on human resource management, and we will be working with the provinces and territories to develop such a plan as quickly as possible. During that time, fee-for-service billing privileges will go only to licensed physicians who received a degree in medicine from an Ontario medical school, or have completed successfully at least one year of post-graduate medical training in an accredited Ontario post-graduate program that will lead to a certification by the College of Physicians and Surgeons of Ontario or the Royal College of Physicians and Surgeons.
This, however, does not affect any physicians already in the system. The restrictions do not include physicians who applied for registration numbers before August 1 and physicians who were already practising in Ontario before August 1, but in non-fee-for-service arrangements.
Other physicians eligible for billing numbers include those who have been granted positions on the medical staffs of Ontario hospitals and universities and take their new posts before January 1, 1994; those who have entered into written contracts to practise medicine before January 1, 1994; those who made a firm commitment to set up a practice of medicine before January 1, 1994, and where the physician has already incurred significant financial obligations as a result. As well, the Minister of Health will be able to exempt physicians or classes of physicians who address needs in underserviced medical specialties, domains of medical practice, academic areas or geographic areas in Ontario.
I want to make it clear that Ontario continues to welcome foreign-trained or out-of-province-trained doctors. These physicians will be eligible for a number of contract positions. The government, with the OMA, will introduce a program of non-fee-for-service contracts by October 31, 1993. With these contracts, we will address physician shortages in isolated and rural communities, as well as provide entry in areas of practice where there are shortages. For example, there are not enough physicians providing treatment to people with HIV or AIDS.
Let me close by saying that Bill 50, with our proposed amendments, will contribute in a major way to government efforts to hold the line on spending for health services. By establishing predictable and stable funding for health services, we can effectively move forward on our health reform agenda, for which I believe wide agreement exists as to its merit, its necessity and its benefits for the people of Ontario. I hope this process will proceed speedily so we can pass and enact this legislation.
The Chair: Thank you very much. At the subcommittee meeting the other day, it was suggested that following your opening remarks it might then be useful to go through the bill with the technical briefing, and at the conclusion of that, the two critics would then make their remarks. If that is agreeable, then perhaps we could go into the technical briefing.
Mr Wessenger: I'd like to introduce Mr Frank Williams, who is going to go through the bill for the members of the committee. Mr Williams has been involved in the drafting of this legislation and has been responsible for it, so I think he's most knowledgeable with respect to it.
The Chair: Mr Williams, welcome to the committee. I wonder just for Hansard if you'd be good enough to identify yourself, as they say. This isn't a game show, but we'll get the proper title on the record.
Mr Frank Williams: Frank Williams. I'm deputy director of the legal branch, Ministry of Health. I hope I can answer all your questions when we've gone through this. I'll try not to repeat too much of what Mr Wessenger has already stated. If you want to go to tab 7 in your binder, I'll take you through the chart that's set out. That might be the quickest way of handling this.
The Chair: I think we have letters, not numbers. Am I right? I'm not very good, but I'd have to count. Seven would be G.
Mr Wessenger: Mr Chair, I think there was a --
Mrs Yvonne O'Neill (Ottawa-Rideau): Background information chart.
Mr Wessenger: -- dated October 18, 1993, Expenditure Control Plan.
The Chair: The comparison chart?
Mr Williams: That's what I'm referring to.
Mr Wessenger: This was handed out today. It is not in your text.
The Chair: Okay. You should have the Expenditure Control Plan, Statute Law Amendment Act, comparison chart.
Mrs O'Neill: You mean it's in with these amendments?
The Chair: It was laid out today. I think it would have been in front of you.
Mrs O'Neill: Comparison chart?
The Chair: Yes, right. Has everyone got the right words and music?
Mrs O'Neill: This is going to be like the long-term care bill. I can see it enlarging.
The Chair: Fine. Please go ahead, Mr Williams.
Mr Williams: Section 1 of the bill, as Mr Wessenger stated, basically stays the same except for two amendments. The first amendment states that the section doesn't refer to agreements reached or entered into after June 14, 1993, or to other agreements that may be prior to that date that are referred to in such agreements. This is to honour any agreements that we enter into subsequent to that date.
Mrs Barbara Sullivan (Halton Centre): Could we just ask, as part of the technical briefing, for delineation of the specific agreements that are affected by section 1?
Mr Wessenger: Yes, certainly.
The Chair: Would you like that first?
Mrs Sullivan: Yes.
Mr Williams: I can answer some of that. I don't know if Eugene LeBlanc can partially answer some of that as well.
The Chair: Perhaps I could suggest, if there are others who may be assisting with the briefing, just to facilitate things if they want to come up and sit at the table. It just makes it a little easier, so you're not running back and forth.
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Mr Williams: Certainly the main intention of this section was to address any ECP agreements the Ministry of Health entered into with all the various sectors on and after June 14, and specifically the agreements that were entered into with the Ontario Medical Association.
Dr Eugene LeBlanc: That's correct. It's any of the agreements. It's the agreements with chiropractors --
The Chair: Excuse me. Would you mind just stating your name and title for Hansard.
Dr LeBlanc: I'm Eugene LeBlanc, the executive director of the negotiations secretariat. There are, I guess, about eight or nine agreements covering all of the fee-for-service practitioners except pharmacists, and this would apply to any of those since they were entered into after the 14th and therefore all those agreements would be exempt from any override as a result of this amendment.
Mrs Sullivan: So your response then is that pharmacists are the only practitioners who are no longer affected?
Dr LeBlanc: They are the only ones for whom there has not been an agreement signed that would be affected by the legislation as it now is contemplated. You said to name those that are affected now. If we were to enter into an agreement with any group post the 14th, pharmacists tomorrow, it too would be protected by this. There's a line drawn in the sand. Agreements entered into after the 14th presumably are to be protected agreements and not overridable by the former provisions.
Mrs Sullivan: Are there any other agencies or facilities that are not protected by the post-June 14 provisions?
Dr LeBlanc: Oh. I was looking at Frank. I think the answer is no.
Mr Williams: My microphone isn't on, but I would say no. This would cover everybody.
Mrs Sullivan: Except pharmacists.
Mr Williams: That's correct.
Mr Jim Wilson (Simcoe West): Just to be clear, what is the exact date of the 1993 interim agreement on economic arrangements between the government and the OMA?
The Chair: What is the exact date?
Mr Jim Wilson: Yes, the effect of that agreement.
Dr LeBlanc: August 1, 1993. That's when it was signed. It's effective as of April 1, 1993.
Mr Williams: Moving on to section 2 of the bill, we have added a new amendment which will basically define what a health card is. The present Health Insurance Act does not refer to health cards, and there are subsequent amendments that will follow this definition.
Basically, the next part of the bill, other than the sections dealing with the Medical Review Committee and the physician review committee, everything practically disappears. The only part of the bill that remains completely intact other than those sections is the section dealing with the Hospital Labour Disputes Arbitration Act, which Mr Wessenger has already alluded to.
Perhaps the best thing for me to do now is just to take you through the various amendments as they occur. The rest of the bill for all intents and purposes isn't there any more.
Mrs O'Neill: I wonder why they printed the amendments smaller than the actual legislation. That's the first time I've seen that.
Mr Williams: I'm just wondering, looking at this chart -- and I can hardly read it; I have trouble reading it with my glasses.
Mrs O'Neill: And you know what it's about.
Mr Williams: If you want to go to the larger amendments that were handed out earlier today, maybe I can just take you through those one by one.
Mrs O'Neill: They're the same as on these sheets?
Mr Williams: You don't need a comparison because they stand by themselves.
The Chair: Just so again we're clear, those are the amendments that look something like this?
Mr Williams: Yes, that's correct.
Mrs Sullivan: But that doesn't include all the amendments. Today's package does not include all the amendments.
The Chair: Right. Some we had earlier, so we'll just need to identify those.
Mr Williams: As I go through them one by one I can identify what parts of the amendments have changed for you to make sure that we're all ad idem. I'll do my best.
Section 1 of the bill we've already dealt with. That's the amendment to section 1 referring to the June 14 date. The second is the health card. The next amendment is subsection (2.1) of the act. It's adding a section 11.1 and that's dealing with health cards. I just want to make sure everybody has that as I'm going through this.
The Chair: The first page in the package that was put before us today is subsection 2(2.1) of the bill, section 11.1 of the Health Insurance Act. That's the one you're referring to.
Mr Williams: Yes, that's correct. If anybody doesn't have it, stop me or slow me down as I'm going so that I don't jump ahead, and I'll make sure everybody has all the material in front of them.
The new section, 11.1, basically provides that the health card is the property of the minister and that a prescribed person who could be a health care practitioner -- it could be a receptionist, could be any other person who's prescribed by regulation -- has the authority to take possession of a health card that's voluntarily given up to that person and the person is protected from liability once the card is relinquished.
The Chair: Could I just ask a question? Last week, a physician came to me and said that someone had, I guess, been in his office and had a card that they ought not to have had. He wanted to give that card in, but then someone else told him that if he did that, he could be liable. He asked me, "Is that so?" and I said I was about to find out because we were going to be in hearings. But if, at the present time, without these amendments, a physician is aware that someone has a card which does not belong to that person, can they not take that card or report that to the police?
Mr Williams: Certainly there's nothing to prevent a doctor or any other health care practitioner from reporting it. I think there's some doubt right now just who actually owns the card, which is why we're drafting the amendments the way they're crafted right now, to make it abundantly clear that the card belongs to the minister and not the person who has the card.
The Chair: At the present time, just so I can tell the physician what to do, he could, though, report that he believed this person had a card which wasn't his or hers and he would report that to the police, or to whom would --
Mr Williams: I would think they would report it to the general manager. That would be the normal way it would be --
The Chair: Of OHIP.
Mr Williams: That's correct.
The Chair: Okay. Thank you.
Mr Williams: The next motion, which is subsection 2(3.1), is adding a new 19.1, which is refusal for payment: This is the section that deals with eligible physicians for the purpose of billing fee for service on and after August 1, up until the end of the agreement with the Ontario Medical Association, April 1, 1996.
The "eligible physician" is defined in subsection (3) and that's basically clauses (a) and (b). Clauses (c) to (g) provide for what we might call "doctors in transit," doctors who had entered into certain arrangements before August 1 and had in good faith entered into these arrangements. Either they'd applied for an OHIP billing number or had entered into some financial arrangements or they had been granted an appointment with a medical school or a hospital. This is the attempt to draw those physicians in to make sure they're covered and they can still bill the Ontario health insurance plan.
Clause (g) provides for a slight rejigging if we find that there are certain groups that don't quite fit either one of the above clauses.
Mr Randy R. Hope (Chatham-Kent): I was looking at (d). When you said the word "applied" for a billing number, what's your definition of applied? Is it through your normal application, or is there a written letter saying that you have intentions?
Mr Williams: Certainly it would be given its normal, everyday meaning, but we have the ability by regulation to define what we mean by "applied" if we find that there are certain circumstances where there's a grey area as to whether there was an application or not. This would be regulations that we'd work on together with the Ontario Medical Association to ensure that we either kept in or kept out the particular group of physicians who were being referred to.
Mr Jim Wilson: Again for clarification: the current law or the current definition of "eligible physician"?
Mr Williams: There is none. Any physician who's licensed in Ontario is entitled to bill the plan. There are certain provisions for opt-out physicians but, basically, a doctor who's licensed in Ontario, who provides what we call insured services, is entitled to bill the plan.
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Mrs Sullivan: I'm interested in knowing the position of the locum physician who may have billed under another physician's number rather than his or her own. I am not certain if and how they are covered with these provisions.
Mr Williams: That's a very good question. Subsection (4), which is the next section I was going to take you to, is the exception. We're hoping that we will cover not only locums, but there's a group of physicians we call "fellows" who also come in for very short periods of time that we'll address, and there could be others as well.
The Chair: What was that term you used? "Locum"?
Mr Williams: A locum is a doctor who fills in for another doctor when they're away on holiday or for some short period of time.
Mr Jim Wilson: Mr Chair, I'd like to clarify this locum stuff too, so people watching this can understand what in the world we're talking about.
Mr Williams: Just for the clarification of the committee too, a locum doesn't use his or her own billing number; a locum will use the billing number of the doctor they're filling in for. We don't want a doctor who's filling in for another doctor and using their number to then all of a sudden have billing privileges under this particular scheme.
Mr Jim Wilson: You mean ongoing?
Mr Williams: Ongoing; that's correct.
Mr Jim Wilson: But they'll continue to use the doctor they're replacing.
Mr Williams: But it would only be for a short period of time. Right now, I think locums are restricted to acting as locums for up to six weeks at a time.
Mr Jim Wilson: Under this bill, does the incoming doctor need a note from the outgoing doctor? How do you do that? Does the doctor provide a note to the general manager, a copy of the contract?
Mr Williams: To be honest with you, I don't know the answer. I'm not sure if there's anybody on staff who knows the answer to that one. I don't.
Mrs Sullivan: There's prior agreement from the ministry for the contract.
Mr Jim Wilson: Not necessarily.
Mrs Sullivan: Mr Chairman, I'd like some further clarification of that. I don't see in subsection (4) how a locum or a fellow would be covered.
Mr Williams: Clauses (c) to (f) set out the various doctors who we might call grandfathered or who are in transit, doctors who have made some kind of arrangements. What we're saying is that despite all those groups up above, a physician is not eligible if they're a member of a class that's prescribed as not being eligible under that section. Normally, somebody who, for example, is on a teaching staff as a fellow under clause (e), we could exempt from the application of clause (e) by the exception under subsection (4). "The physician engaged in the practice of medicine at any time in Ontario at any time before August 1" could be the locum, who before August 1 provided some service, maybe not under their own billing number but under another one. We would exempt them under subsection (4) as well.
Ms Dianne Poole (Eglinton): I had two questions in this regard. First of all, concerning some women physicians who have taken time off to raise children or who discontinue their practice but then come back into the mainstream after August 1, 1993, would there be an impact on those physicians or would they be protected by clause (c)?
Mr Williams: They'd would be under clause (c), if they had engaged in the practice of medicine in Ontario at any time before August 1.
Ms Poole: There was another case that was drawn to my attention. A physician had received her training in one of the western provinces and just moved to Ontario last year, and she decided to take off a couple of years to raise a young child and then to go back into practice. Would she be impacted in that she would have to go back to school and receive further training from an Ontario university?
Mr Williams: In the particular situation, if the person met one of the criteria in clauses (c) to (f) or met one of the additional criteria perhaps that would be prescribed under (g), I would say no, but I don't know the circumstances. If the person you're talking about even for one day before August 1 actually engaged in the practice of medicine, she would be able to continue billing. Likewise, if people fit into one of the other criteria as well, they'd be able to continue billing.
Ms Poole: But that would mean they would have had to have a billing number prior to August 1, not only to practise medicine.
Mr Williams: Yes, or applied for one, one or the other.
Ms Poole: Or applied for one. We may have some gap from people from other provinces who did come to Ontario with the expectation that they would be able to practise medicine without further training and are now caught in this particular mechanism.
Mr Williams: I think it depends what you mean by "expectation." If the expectation was one of the delineated situations we've outlined here, then I'd say yes, they could continue to bill. It would have to be more than just an expectation. They would have to have made some commitment prior to August 1, either through application or actually billing the system or practising medicine or having entered into some financial or contractual arrangement before August 1, not necessarily coming here by August 1 but having entered into that arrangement before August 1 to commence practice before January 1, 1994.
Mr Jim Wilson: Are there physicians currently practising or teaching in Ontario who you haven't grandfathered in some way or another? Is there a class of physicians out there who may find the passage of this bill and its effect --
Mr Williams: To the best of my knowledge, and we've worked very closely with the OMA on this, we think we have caught the major groups. There may be the odd person out there who hasn't written us. My understanding is that anywhere from 40 to 50 doctors have written us to see whether or not they will actually fit in within the exemptions we've outlined. To the best of my knowledge, we've caught them all. There may be one or two we don't catch, and that's the purpose of having the ability to add more by regulation.
Mr Jim Wilson: The general question that comes to mind is that this deals with payment to eligible physicians to a retroactive date. What was the discussion between the ministry and the College of Physicians and Surgeons with respect to granting licences in the future? If you're trying to stop physicians from coming from other provinces or other jurisdictions and taking up practice and automatically billing because they have a licence, what was the discussion surrounding the actual issuance of Ontario licences to practise?
Mr Williams: I can't speak to the issuing of licences; that certainly is not dealt with in this bill. I don't know if that's really a subject matter of this bill at this point.
Mr Jim Wilson: Perhaps the parliamentary assistant could advise us.
Mr Wessenger: The only thing I can think that would be fair to indicate is that the matter of licensing is a matter for the College of Physicians and Surgeons and not a matter for government legislation. There's nothing in this legislation that intends to interfere with the jurisdiction of the college of physicians with respect to its licensing role, and there's no intention to interfere in its licensing role.
Mr Jim Wilson: That's what I'm wondering. You're simply narrowing it to a payment provision here in the hope of restricting the number of physicians coming to Ontario. Maybe there's a very commonsense answer to this. I'm not trying to be mischievous; it seems to me you've got the cart before the horse. You're dealing with payment after the fact that they may be here. Why aren't we talking about, with respect to this bill, the whole issue of licensing? I know it's with the college. I assume there were some discussions.
Mr Wessenger: If I might indicate, the policy purpose of the restrictions on the fee for service is double-edged. One, of course, is to restrict the number of practitioners doing fee for service, but the other is to provide a mode of practice in the contracts in the underserviced areas or in the areas where there's a shortage of physicians, to encourage physicians from out of province to go into those areas. I think it's fair to say it's a double approach here. It's not saying that people can't practise medicine; it's just restricting the mode of practice for the out-of-province, not saying that they won't be eligible to practise medicine in the province.
Mr Jim Wilson: It seems to me, if I might follow up, that with this definition, if you fall outside the definition and you want to practise medicine in Ontario, there's nothing preventing you, provided the college gives you a licence. You just may not get paid by OHIP or the government.
Mr Wessenger: Yes, that's right.
Mr Jim Wilson: So you're setting up a second-tier medical system.
Mr Wessenger: No. Maybe I'll ask Mr LeBlanc if he can add anything to this aspect.
Dr LeBlanc: Yes, a couple of points. The first is that, as the parliamentary assistant identified, this does not affect the process of licensure. You're correct in that you can end up with two kinds of physicians in the province, both licensed, one group that has an eligibility of practising fee for service and the other group. Under fee for service, there's absolutely no requirement as to what they practise, where they practise, when they practise.
The advantage of systems that are outside the fee for service is that they are specific positions in specific numbers with specific parameters, so if you want physicians in AIDS care or you want physicians in Dryden, you set up those positions and those positions will be available. The logic of this process is that there will be physicians who will wish to practise medicine and, being denied the capacity to go into the ad lib fee for service, where they can go where they want, when they want, they will move into, in effect, slots where jobs are offered.
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The second point you raise is that, in theory at least, a person can enter Ontario, be licensed and practise medicine; in theory, they could practise and not be paid. They are legally precluded from charging for the services because there's only one payor. It's theoretically possible for a physician to choose to do that, but their alternatives are to practise in the various areas of medicine that are not on fee for service, all of which have a geographical location, either in a given building, a given address in Toronto or a given community, and have a given number and a given mandate. The idea is quite clearly to steer physicians away from adding to the ad hoc system, which is fee for services, into the other one. I suppose one could end up with a theoretical person who practises medicine for free. I think it's unlikely, but --
Mr Jim Wilson: For free, or I think what's more likely is billing the patients directly. How are we with respect to the Canada Health Act on that?
Dr LeBlanc: No, they cannot. I suppose theoretically a physician could come in purely practising plastic surgery which is not covered by the Canada Health Act, not insured, and in theory they could presumably create their own employment. But if we're talking about the insured area of services, their only alternative would be to not be paid, though there is no proscribing of them doing that which they are licensed to do, but as a practical matter, I would think it unlikely to happen.
Mr Jim Wilson: But if the government continues to delist insured services, you may have a new class of physician that comes to Ontario to remove port wine stains exclusively. I see it as a two-tier medical system within our own borders, not just the current system which we clearly have with respect to the United States and other provinces.
Dr LeBlanc: I think one will have to wait and see what is in fact deinsured. We have had recent case law, in which hair removal was removed as an insured service and it did not stimulate a frenzy of plastic surgeons moving into the province in order to provide the service.
Mr Jim Wilson: But give those plastic surgeons a few more deinsured services to add to their offering to the consumer and you will see a class of physician come in.
Dr LeBlanc: Cosmetic surgery is always a possibility for independent practice, and I believe there are practitioners now who practise, licensed in Ontario, entirely unknown to the Health Insurance Act, because they only do hair transplants or other types of cosmetic --
Mr Jim Wilson: But I think everyone's aware that the current rumours with respect to delistings involve more than just cosmetics.
Dr LeBlanc: I believe I shouldn't comment on rumours, as all that will become public in due course. I suspect you may wish to revisit it.
Mr Hope: Just to assist us in this process, under subsection 5(b), where you indicate paragraph 1.4 of schedule 3B of the 1993 interim agreement, I'm wondering if it'd be appropriate to have a copy of that so we know what we're talking about.
Mr Williams: I can't comment on what materials have been provided. I thought the briefing materials contained a copy of the agreement with the OMA. I'm surprised to hear they don't.
Mr Jim Wilson: He wants the actual agreement.
Ms Poole: This is only a summary of it.
Dr LeBlanc: I will provide your clerk with a copy.
The Chair: Fine; thank you very much.
Mrs Sullivan: I just wanted to confirm the process as to whether we are still going to have time for a critics' overview after we go through the proposals.
The Chair: I was going to let us continue until about 5 o'clock and then I was going to raise that question to see how much time you would want and try judiciously to ensure that time is there. We'll continue then with the briefing. Please go ahead, Mr Williams.
Mr Williams: I can go as fast or as slow as you want, depending on how many questions you ask.
Mrs Sullivan: There were a lot of questions on that.
Mr Jim Wilson: I sort of thought we were giving a critical overview as we were going.
The Chair: I sensed that.
Mr Jim Wilson: I'm going to have nothing to say when it comes time to --
The Chair: That's fine. All I was going to say at 5 o'clock is --
Mr Stephen Owens (Scarborough Centre): Since when has that stopped you?
Mr Jim Wilson: I'll take that as a compliment.
The Chair: -- that we can continue to go through until 6, or you can make any comments. It seems to me that we are all learning a great deal, both through your questioning and through the answers that we're receiving.
Mr Williams: Subsection (5) of the amendments refers to a physician resource agreement. I'll just take you back to subsection 19.1(1), which is the general section basically that restricts the fee-for-service billing. Subsection (5) provides that in addition to 19.1(1) disappearing on April 1, 1996, where the province enters into what we refer to here as a physician resource agreement -- and it's defined. That definition refers to an agreement entered into between Ontario and one or more of the (i), (ii), (iii) that are referred to in clause (a), and in addition, it has to meet the criteria of the physician resource agreement that the member referred to in the OMA agreement. I hope you'll have a copy of that by the end of the afternoon.
Basically that provides, and you go to subsection (6), that to the extent that such a physician agreement provides, it can override 19.1. So 19.1 could in fact disappear by April 1, 1996, either by operation of that date or, where a physician resource agreement so provides in whole or in part, as set out in that particular agreement.
Mr Jim Wilson: Could I just ask the parliamentary assistant what the status of those negotiations with the federal government and the other provinces is regarding a national physician resource agreement?
Mr Wessenger: I'll ask Mr LeBlanc to deal with that.
Dr LeBlanc: I was having a short conversation with the clerk on the contracts, so maybe I could hear the question again.
Mr Jim Wilson: Section 1.4 of the OMA-government agreement, of course, states, "The government shall offer forthwith to negotiate and enter into a national agreement on physician resource supply" etc. Have those discussions been ongoing? What is the status of such an agreement?
Dr LeBlanc: Yes. The current activity began, I believe, a year ago January in the west, and they have continued, most recently this past September. It's expected to have a first-draft agreement by March 1994. That's the work plan. There is a national committee with working groups, and they expect to have one drawn up, since normally the deputies would meet in June of the year and the ministers in the following September.
That's the current work plan. Obviously, if they don't agree, then that won't be achieved, but the sense I have is that, give or take a month, they're on their work plan.
Mr Williams: Subsection (7) provides that the minister can exempt physicians or classes of physicians from 19.1(1) in order to meet needs in academic areas, medical specialties, domains of practice or in geographic areas that are underserviced by physicians or for prescribed purpose.
Mr Jim Wilson: Does the definition of "underserviced" change with the introduction of this legislation, or are there changes to the underserviced area program? Where's the legislative authority for the definition of "underserviced"? I've never been able to find the thing.
Mr Williams: I think Dr LeBlanc can answer that better than I can.
Dr LeBlanc: There are two meanings of the word "underserviced." There's the capitalized version which describes the underserviced area program, which has varied in its structure since it was introduced in the mid-1960s. In this case, it's based on what the minister considers to be underserviced, which is a more flexible definition than that which is defined by the existing program. The existing underserviced area program is largely defined as a northern program, although there are a few small initiatives in the south. This one here does not have those restrictions. It's an open-ended process but does require ministerial proclamation of what is defined as "underserviced."
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Mr Jim Wilson: The reason I asked the question, of course, is I'm trying to get my part of Simcoe county, and in fact most of Simcoe county, designated as underserviced, because it seems to me that we would qualify except that we're not located in northern Ontario or some other area that is considered geographically designated. My understanding, then, to the parliamentary assistant, would be that this would give more flexibility to the minister and we should continue lobbying the minister.
Mr Williams: That's correct.
Mr Wessenger: Yes.
Dr LeBlanc: It also gives two other features that have, to the best of my knowledge, not particularly existed in the underserviced area program, because it's not just geography but it could be a specific kind of physician or a specific kind of patient need, which are features that have not, as a practical matter, existed in underserviced area programs in the past.
Mrs Sullivan: I think one of the things that is not clear in this amendment -- and I was delighted to hear Dr LeBlanc speak of the patient need, because it seems to me that an "underserviced area" definition should revolve around the health needs of people within the community and move from there rather than from a funding base.
One of the things that is not clear from the amendment as is proposed is who else, other than the minister, shall make the judgement with respect to the health needs of a particular community, whether they be in terms of a need for a physician with particular competencies or whether they be a need for particular, by example, emergency services, life support services, in which a community or a geographic area is short -- because they are needed by patients, not because of a physician-population ratio.
It seems to me that once again the minister has power to exempt physicians, and there is no indication of what other resources would be placed in the flow so that the minister was making the appropriate decisions rather than unilateral decisions based on the kind of lobbying that Mr Wilson was speaking about.
Dr LeBlanc: Obviously I understand that ultimately ministers make decisions in the best way that they can. I think you may misunderstand subsection (7), as I understand it, because one would hope that in the majority of cases, academic needs and specialty needs and other needs would be largely met from those physicians we train in the province.
What this provides for is exemption from all of the other provisions that restrict, so that notwithstanding everything else, so that in extraordinary circumstances, so that in this case where one has to exempt because of these needs, these ought to be relatively easier decisions because you're working at the edge rather than establishing a base capacity.
For example, this provision would ensure that if one could find them and they were willing to come, notwithstanding the previous part of the bill, radiation oncologists could be brought into the province, or if one had a localized general surgery program, say, in northwestern Ontario, and the two surgeons left town and there was no means of maintaining that service, this would allow that exemption.
What one would hope is that the general response for your community would not be through this exemption but through a more direct action. This is if all other things fail. This is a safety precaution.
Mr Jim Wilson: Mr Chairman --
The Chair: I've got Mr Hope. Did you have a follow-up, Ms Sullivan?
Mrs Sullivan: Yes. I understand that this particular section is with respect to the exemption for foreign or other trained doctors who may be coming into Ontario to meet certain needs.
What I don't see here and is one of the problems with the bill is the incentives for Ontario-trained doctors to do the underserviced area work as it's defined not only by the minister but by a committee with expertise, whose judgement I would trust better than the minister operating in isolation, and that the underserviced area issues become defined on patient need, not on physician-population ratios.
Dr LeBlanc: There is no reference to physician-population ratios in this provision. The minister does have a variety of sources of advice that continue to work on the general issue of distribution. The principal instrument of distribution of physicians now involves the existing incentive program with the additional feature of the supplementary contracts which are now no longer limited to freestanding, fee-for-service physicians, but include physicians both in geography, area of practice and specialty. All of those are defined by need, the latter group.
I think you are attempting to accomplish more with section 7 than I believe it was contemplated to achieve, which is the whole problem of overall distribution. This is a fail-safe provision to allow, when the other pieces don't work, that you are not boxed into a corner of not being able to bring people in from other jurisdictions. It is not intended by itself to fix those issues.
Mr Hope: I'm glad you explained that part because I guess the OMA and the Ministry of Health are supposed to come up with an agreement dealing with underserviced areas and you'd not only be talking about north but southwestern Ontario. If all those mechanisms fail and we don't meet the criteria of that so-called agreement and whatever other part of this bill is not in place, the minister would then have the power to help those communities which feel they need -- and the minister agrees the need there to provide physicians is valid. If I'm listening to the conversation that's taking place, if everything doesn't work to meet the needs of the community, this is a fail-safe mechanism -- using your own words -- to help a community obtain health.
Dr LeBlanc: Subject to what you embedded in the general comments, that the minister -- this is not a mechanism by which many people make a decision. It's ultimately in the hands of the minister, but it does allow the minister to compensate for shortfalls, however caused, in services in the areas of geography, types of practice and medical specialty, without regard to other initiatives. So she has the capacity to be sure that ongoing needs are met, notwithstanding the structure of this law.
Mr Jim Wilson: Dr LeBlanc, I appreciate your comments. I think that, as legislators, we didn't want to pass up the opportunity when you used the term "underserviced" in this legislation, to try and figure out exactly what the ministry today means by that and where the future direction is with respect to the ministry on this issue.
I was wondering if perhaps the parliamentary assistant could undertake to give us a clearer definition of "underserviced" and any status report with respect to discussions with the OMA, because it is a very serious concern for my area of the province and other areas, of course. Given that the underserviced program and that terminology seems to be the only way to get resources to your area, I'd like to know what we're dealing with.
Mr Wessenger: I believe in the agreement there's a date set for establishing a process for dealing with the underserviced areas with the OMA. Am I correct?
Dr LeBlanc: Six days have been set aside, hopefully not to use them all, in order to arrive at the anticipated negotiation before the end of this month, so I think you will be in a position to report as requested. I assume the process will be continuing that long.
Mr Wessenger: That'll be occurring during this month then, the new issues.
Dr LeBlanc: Yes. It's still anticipated to resolve these issues before the end of the month.
The Chair: In the month of October?
Dr LeBlanc: Yes.
Mr Williams: I'll continue with the section dealing with third-party services. Just to give you an overview, I look at the third-party service section as being part of a three-part approach that we've taken to third-party services. Back in 1991, the government passed a regulation defining what services are not insured services and those services for which OHIP would not pay, that are to be billed back to third parties.
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What this motion does is ensure that in those circumstances the third party that requested or required the service actually is liable to pay for that service. What the motion does is provide a mechanism whereby a patient or third party has recourse if they feel that, for example, there's been an overcharge for a third-party service.
The mechanism goes further, to provide by regulation for an independent body. We hope to set up an independent body in the near future, in cooperation with the OMA, so that patients don't have to go through a court process or a tribunal process in the normal sense of the word. Hopefully it'll be a process that can be done by an exchange of documentation, an exchange of paper, so that the whole climate of the adversarial part of it can be eliminated.
Mrs O'Neill: I was going to ask about that, because I'm just wondering about the enforceability of this. You say that in the future you're going to put in an independent body, but the notes we got from the ministry on several different places in this bill seem to just indicate that this is going to happen. I'm not positive that every school board, every children's centre, every food processing company is just going to say: "Yes, that's wonderful. We're going to do that." Unless it's written in a collective agreement or in some other agreement with employees, I feel the individuals, and certainly in the case of such things as going off to camp, are going to have to pick up the fee.
Mr Williams: I'm not sure if I'm going to answer your question directly, but I think one of the purposes of this whole exercise is not only to ensure that the third party is liable, but it's also to force third parties to examine what they're requesting and requiring people to do. There are a lot of situations where third parties are beginning to realize that maybe the requests and the requirements they're placing on the patient are unreasonable and unnecessary. We're hoping that in a lot of cases some of these requests and requirements will actually disappear.
Mrs O'Neill: If you get the situation you have out in Peel right now, I'm not sure that's going to be the desired result.
I'm really quite concerned about this particular aspect, because it has a very wide scope. We can't even think of all of the places where there will be a necessity to bring this part of the bill into action. The education on this part of the bill is going to be very important, because individuals are going to be surprised by this particular change. I think a lot of it was being absorbed by the system. I'm not saying whether that's good, bad or indifferent, but I really do think that at the moment there's a whole new way of doing these things. They're going to be on children, maybe on individuals in vulnerable positions -- out of work, trying to get work. In some cases the kind of work they're getting is minimum-wage work. This is the kind of thing I'm thinking of.
I don't see, at the moment, any protection here that is going to say, "Yes, you will be able to collect this from the third party." I don't see any enforceability. You're hoping they won't ever have to go to court, and I do too, because I think many of these people would never go to court. But it's just that if you have two or three children or you have two or three needs to do this kind of thing on an annual basis, medicals are pretty expensive.
Mr Williams: Subsection 36.2(1) makes it clear that the third party is liable for payment of the account.
Mrs O'Neill: Can you enforce that? I don't know how you can enforce that.
Mr Williams: There's a provision in here to go to court, if necessary, to enforce that.
Mrs O'Neill: And the transfer agencies will all be informed and there may even be a punitive attachment, if they are a transfer agency, if they don't do this. Is this correct?
Mr Williams: Perhaps Dr LeBlanc can partially answer this, because I know, for example, that with workers' compensation there have been arrangements whereby these sorts of situations would be looked after internally.
Dr LeBlanc: The first point is that one should understand this is not happening in a vacuum of history. The examples you gave are currently prescribed by regulation in that an employer who simply wants a note for the purposes of maintaining attendance discipline should be paying for it and not the health insurance plan, and there were communications around those issues a year ago. You are correct, and I believe wise, in your suggestion that one has to continue making it clear to people what in fact is the way the world operates.
One does hope, as our counsel pointed out, that one does change things. The province itself, for example, has changed. Once upon a time, if you were away more than three days, people were required to have a note. Now if you are away more than three days, a note may be required and Management Board will pay for it, so they are no longer automatically being produced, stuck in files and never looked at. A number of camps have begun to re-examine their practices and are either using a nurse or a group process to examine people going to camp, rather than having everybody go to their individual doctor.
There will be dislocations if people have been abusing the process and now find, either due to indifference or simply the passage of history, that they haven't examined their practices. But it is the law now that they not charge OHIP.
This goes a way towards clarifying and assigning responsibility to the outfit that seeks the report or seeks the thing to make clear that liability. This is not creating a new regimen of non-OHIP liability payment. That has been in place since the introduction of medicare. It has not always been complied with, and the efforts of the last few years, culminating in this, are to make it quite clear that organizations which need to have work done should not export the cost into medicare's ambit.
Mr Williams: I refer to this also as a three-step process. The third step, which I haven't referred to yet, is the fact that there is now an ongoing process, hopefully to be completed by March 1994, which is examining the roughly 12 statutes and 50-odd regulations that now require some sort of third-party service to be performed. We are looking at those very closely to see whether all of them should be continued or some of them or none of them.
Mr Wessenger: Perhaps I could attempt to clarify, just for my own mind and maybe for the members of the committee. This is not really deinsuring any of these provisions with respect to third-party requests. What we're doing is merely shifting the legal responsibility in certain cases from the patient to the party requesting. This only shifts the legal responsibility away from the patient to the third party; it doesn't change in any way whether the service is insured or not.
Mrs O'Neill: My main concern still is, do those third parties -- and I know they're there -- understand this and have they agreed? Have they been consulted? I get from what you're saying that perhaps there's been some consultation with some of them. I'm still quite nervous about just how this is going to sift out into the individual communities.
Mr Wessenger: I might just indicate that it's only prescribed circumstances. It's not every third-party request that's going to be covered by this legislation; it's only those provisions that are specifically provided by regulation. It doesn't mean that everybody who requests a doctor's certificate is going to be automatically liable for the cost of it; it'll only be those where we've prescribed it by regulation.
Mrs O'Neill: That's helpful.
The Chair: Mr Owens, that covers your point? Mrs Sullivan and then Mr Wilson.
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Mrs Sullivan: The last statement by the parliamentary assistant of course leads to my next question, which is, would you advise us what services you are contemplating be covered by regulations under the third-party billing provisions here and which ones you do not contemplate? I think we should have that information before we proceed.
There are peculiarities, as I see it, in the drafting here. One of the issues that is of singular concern is what the patient is left with. A physician, by example, is requested by the patient to do a physical which, under the OMA schedule, costs $26 or $27, under $30, I think. The court system, being the method of collection, is ludicrous for that kind of referral, for that kind of fee, and I think that's one of the issues that should be on the table.
The other issue is with respect to your drafting of 36.2(1), which leads us to believe that the physician has the option of drafting a bill, preparing a bill and sending it to the third party, or the bill can be provided to the patient directly and then it appears the patient is obligated to pay.
Unless we're reading subsection (3) of that section incorrectly, nothing in this section affects any liability of an insured person to pay a physician's or practitioner's account for a third-party service. That tells me the individual patient is still responsible for paying.
I would also be interested in having, as we proceed, more background on the approaches that are being made to the 12 statutes which require some form of health medical review before certain activities are undertaken. I heard the parliamentary assistant say that immunization for schools and child care would not be charged back to the school boards. However, the Day Nurseries Act requires more than immunization as a condition of medical scanning as children are entering those schools. I believe there are strong regulations with respect to food handling where certain medical tests are required and the ordinary physicals are required.
I'm not prepared to take it on faith that over a period of time the government's going to examine existing legislation and regulatory requirements and come up with some kind of scenario for dealing with third-person billings. Either you've got the work done now or you don't have the work done now. You don't have the work done now; you've got regulations that are in place now. So why are you bothering with this entire section?
Mr Wessenger: I probably will hand this over to ministry staff to answer the more detailed aspects. I think we have several questions involved here. First of all, as I understand it, the list of prescribed circumstances has not yet been determined. There may be some indication of what's under consideration, but certainly there hasn't been any final decision, as I understand, on that matter.
With respect to the question of the physician's option to determine whom to bill, I would suggest, again from my own personal experience when I was a private practitioner of law, that normally physicians would much prefer to have the third party responsible for payment than the patient. Certainly, from my experience as a lawyer, when I requested a medical report medical practitioners were willing to take my undertaking to pay the bill while they would probably have required an upfront cash position from the patients. So I assume that most physicians would in fact directly bill the third party rather than take the option of billing the patient. I think I'll leave it. I'll turn it over now to our solicitor here.
Mr Williams: I can undertake to provide to the committee a list of the statutes and the regulations that we're now considering that are under review. That certainly shouldn't be a problem.
Dr LeBlanc: I think they should also be provided, if they haven't been already, with the existing regulations. Some of the examples the parliamentary assistant indicated were covered are already extant in the regulations. The issue is whether in some cases they should be required at all, even those we now pay for. So many of the legislation pieces are quite old and have not really been systematically examined. During the last six months and more, a variety of groups have suggested that some of the provisions are archaic.
A systematic review is under way. It is expected that in some areas we already know we would not alter. For example, the provision of mandatory medical examination under the Mental Health Act: The review of that is not going to alter the fact that those reviews will continue and that as a matter of public policy, they are likely to be paid for under health insurance. With some of the other requirements, for example, annual medicals within nursing homes, given that they have more extensive care, the issue has arisen whether that should be a continuing provision or not. As it is now, it is both a provision and covered. The question is, should it be a requirement at all? That would be the kind of issue that would have to be pursued.
Mrs Sullivan: I'd like more information on who is participating in the review.
Dr LeBlanc: It is entirely an internal government process.
Mrs O'Neill: Can we have the answer to that question Mrs Sullivan raised on subsection 36.2(3)? She asked a specific question and I didn't hear any response to that.
The Chair: I wonder if someone might repeat the question.
Mr Wessenger: I think it can be answered, yes.
Mrs O'Neill: Basically what the obligations are.
Mr Williams: I thought the parliamentary assistant had actually answered that question. In practice, I think the doctor would prefer to bill the third party. This is just saying there's nothing to prevent the doctor necessarily from billing the patient after the service has been provided.
For example, where an employer requests that all the employees receive health examinations, there might well be one doctor whom the employer pays a block fee to do all the employees of that particular employer. In that way, the employee wouldn't have to pay the cost or bear the cost at all. It would be between the doctor and the third party.
Mr Jim Wilson: I think the discussion we've had with respect to this issue has been helpful.
Dr LeBlanc, for your information, the committee has been provided with both regulation 552 and subsequent -- I guess the amended 552, which was regulation 785/92. It can be confusing reading for a simple legislator such as myself.
I ran into this recently with respect to a constituent who had to have a medical examination and report for the Canada pension plan disability. I ended up sending the whole thing to the Ministry of Health hoping it would straighten it out, but my recollection is, and I'd like a clarification from Dr LeBlanc, that this particular physician charged my constituent, I think, $75. The provincial ministry told us that the reimbursement of that to the patient was the responsibility of the federal government, it being a CPP disability matter, and the federal government wrote me back saying, "Well, we only pay $60."
Could I have a clarification? I'm still awaiting a response from the Minister of Health, Ruth Grier, on the whole thing and I'm sure she'll give it a thorough review. In the interim, what is the current status with respect to a federal disability program and payment by the province for the examination and any notes arising therefrom?
The legal counsel has indicated you're reviewing the provincial statutes and requirements there, and I'm just wondering, my particular constituent is out $75 and we're not sure who's supposed to reimburse my constituent.
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Mr Wessenger: I actually asked the same question. I don't know whether legal counsel can provide an answer today or will undertake to provide an answer to the position with respect to federal disability pensions. I was under the impression that these were items that were covered under our present system.
Mr Jim Wilson: I was under a similar impression, except when you re-read the Hansards, ministers have been very careful, as have ministry staff, to refer to the provincial disability plans. I agree, Mr Wessenger, that we were left with the impression in the Legislature that all disability plans and examinations required for those were covered, and that's why it came as a shock to me and the public, I think, that this particular payment seems to be in limbo. I'm not aware of it being in limbo prior to the passage of the new regulations.
Mr Wessenger: I think it's something we could ask for further clarification on.
Mr Jim Wilson: Okay, thank you.
The other quick question I have with respect to this is that when one reads the regulations, there are a number of services rendered by physicians that of course have not been, and as a result of the new regulations are not covered by the insurance plan, by OHIP. It does raise the question, though, and the Senior Citizens' Consumer Alliance for Long-Term Care Reform brought it up in its press conference last week, where it had reports of a number of physicians charging these $100 administrative fees for any notes that might be required.
Could I ask the parliamentary assistant what's being done about that and what is the state of the law with respect to these upfront administrative charges being applied? Seniors particularly feel vulnerable on this practice.
Mr Wessenger: I will defer to legal counsel with respect to the legal status of such charges. I think it's clear that no patient is obliged to make these payments at all. There's no legal obligation on the part of any patient to pay the administrative fee. A patient can, I suppose, voluntarily make that agreement, because it's basically to cover "telephone consultations," areas that are not really under the insured scheme, but I'll ask the legal counsel to indicate whether there's anything illegal about those types of agreements or not.
Mr Williams: Actually, these are matters that are presently under discussion, both with the OMA and the College of Physicians and Surgeons, as to the right of doctors to charge what you might call block fees to patients. Certainly, the agreement with the OMA contemplates that doctors will be able to charge block fees with respect to third-party services, but that's block fees to employers, not to patients. I think I would like to get some further information for the committee on that before I give a definitive answer, but certainly it's something that's under discussion at the present moment.
Mr Jim Wilson: Thank you. I would appreciate that information as soon as possible.
I think I'll defer my final question with respect to this section, because we're running out of time. It's another lengthy --
The Chair: I was just going to raise that it's five minutes after 5. We still have a number of amendments to go through, particularly for the critics. What would your druthers be? Shall we continue until a certain point? The other thing is that we have three witnesses tomorrow. There may be some time to --
Mr Jim Wilson: My preference would be to continue with the briefing for as long as we have these people here. They have busy schedules and they've taken time out to be here. I don't personally require a lot of time for getting critics' overview of this legislation. We did have extensive debate with the original Bill 50 in the House and I spoke for some hour and a half there. I'd simply tell the public to read Hansard from then.
Secondly, I think the best use of our time this afternoon is to hear our questions answered directly.
Mrs Sullivan: I'd like to go through the amendments and then go into critics' --
The Chair: Please continue, Mr Williams.
Mr Williams: I'll try to keep my comments as general, rather than getting into specific subsections, unless the members have specific questions that they want answered.
The Chair: Somehow I suspect inevitably we will get to subsections.
Mr Williams: That's the truth. The new section 43.1 of the act, which is added by subsection 2(3.3) of the motions, provides for mandatory recording of health card fraud by prescribed persons, and that could be physicians or other health care providers. It could be a receptionist in a doctor's office, for example. The requirement is to report an event referred to in subsection (2) that may have occurred, and there are three events listed in subsection (2).
There is a defence about reporting under subsection (1). I guess the best example would be a suicidal patient, where the doctor's afraid that reporting might affect the health of that person. The defence only lasts so long as the threat of serious bodily harm remains, and after it disappears the obligation is on the physician or the health care practitioner to report the event.
Section 43.2 provides for a broader voluntary reporting of health card fraud or fraud under the act, various types of situations, and 43.3 provides protection from liability, both for the mandatory and the voluntary situations.
Mrs O'Neill: You gave who this applies to and then in the overview you provided the statement, "No physician or practitioner is required to make a report about another physician or practitioner." Is that correct?
Mr Williams: That section has now been removed.
Mrs O'Neill: This is what came in the package today, but I guess it's dated October 8. So that's been removed today?
The Chair: Which amendment? Because if it's the one that was --
Mrs O'Neill: He just stated that anybody is obliged, including physicians, and the October 8 statement that came from the Ministry of Health said, "No physician or practitioner is required...." so that's why I wanted to check.
Mr Williams: The section now reads, "A prescribed person who, in the course of his or her professional or official duties, has reasonable grounds to believe that an event referred to in subsection (2) may have occurred shall promptly report the belief and the information on which it is based to the general manager." The three events are set out.
Mrs O'Neill: There are no exceptions except that one you mentioned about a suicide.
Mr Williams: Yes.
Mrs Sullivan: Just for clarification, I think that basically the question Mrs O'Neill was asking was if there's any obligation on a physician or other practitioner to report what, in his or her view, is professional fraud, apart from consumer fraud, although it was an old briefing note. I have a lot of other things to raise on this as we go along, but I just wanted to clarify what the difference was from the original note that she had.
Mr Williams: Perhaps if I take you through the events one by one, it will be better than looking at the old draft; just look at the new draft. Paragraph 1 refers to, "A person who is not a resident receives or attempts to receive an insured service as if he or she were an insured person." That would be the situation where you come in either with somebody else's health card or a fraudulent health card and you say you're an insured person.
"2. A person who is not a resident obtains or attempts to obtain reimbursement by the plan for money paid for an insured service as if he or she were an insured person." That's to address the situation of a patient going to an opted-out physician.
"3. A person who is not a resident, in an application, return or statement made to the plan or the general manager, gives false information about his or her residency." That would be somebody applying to the plan who says they're a resident when in fact they're not a resident of Ontario. Those are the three situations that are required to be reported by a prescribed person.
The Chair: I go back to the question I raised earlier, because I want to be clear. Today, if the physician believes somebody is seeking a service and they have a fraudulent card, you were saying that should be reported to the general manager of OHIP. In 43.3 where it talks about protection from liability, is there some doubt today about whether the physician may be somehow subject to some form of liability?
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Mr Williams: I can think of two situations. One, you might have the situation where in fact there is no fraud and the patient sues the doctor: "You're saying I did something I didn't do," and the good name of the patient's now in question. The other situation is that you may have a statutory obligation not to report something, for example, under the Public Hospitals Act, and this would protect you from the situation of reporting where in fact there was fraud. There are two types of situations we have in mind, and there are others examples as well.
The Chair: I have Mr Wilson, Mr Hope and then Ms Sullivan.
Mr Jim Wilson: I know that when the Ontario Medical Association appears before us tomorrow this particular section will be of concern to it. In preparation for that discussion, I'm somewhat disturbed by the wording in the requirements of this subsection (3.3). Perhaps I could ask legal counsel to clarify. The intent of the amendment to 43.1 is to ensure that there's mandatory reporting, and it's a "reasonable grounds" test, but it seems to me that while there are both of those, the last part of that 43.1(1) says "report the belief and the information on which it is based to the general manager."
First of all, I don't agree, at this point in the hearings anyway and from the discussions I've had with physicians, that they should be asked to police a system they had not been consulted on and which was put in place by the previous government, so I have problems with the mandatory reporting. But with "report the belief," it seems to me you're watering down your own mandatory reporting. Second, one of the reasons I have problems with mandatory reporting is that I think it will have an adverse effect on the physician-patient relationship.
Can you tell me what the legal implication is of "report the belief"? If you really want mandatory reporting, then you would do something along the lines that if there is any inkling on behalf of the physician there's a requirement to report, which I wouldn't agree with either.
Mr Williams: The way the section reads, it says belief that something may have taken place, so if there's a hint that something has happened and a physician believes there may be fraud there would be a requirement to report it, but the physician would have to truly believe that something had taken place. It's not that it has taken place, but that it may have taken place.
Mr Jim Wilson: I'll ask the parliamentary assistant the necessity for this mandatory duty to report. It would seem to me with the new capping, it's in the physicians' interest, as a whole, to stamp out fraud where they believe it's occurring and that a voluntary system of reporting would suffice, given that they will pay a financial penalty if utilization goes above the threshold.
What was the discussion and why did the government decide that physicians would be the front-line police officers for the OHIP system?
Mr Wessenger: I think the first comment to make is that it doesn't apply just to physicians. It will apply to prescribed persons who will of course be other health practitioners who are involved in the giving of services under the card.
Mr Jim Wilson: I assume it will cover everyone who has to receive the card as a currency in health care.
Mr Wessenger: I'll ask counsel also to elaborate on this.
Mr Williams: I think there are two other groups we also have in mind, not just the practitioner: You were talking about the receptionist in the doctor's office or in the clinic or in the hospital, and possibly even immigration officers when somebody's crossing the border. These are some of the people who come into contact with the sort of situations we're trying to address.
Mr Jim Wilson: It seems to me, though, that the mandatory provision rather than voluntary is a political decision, and one the parliamentary assistant should have a response to.
Mr Wessenger: I think it's fair to say that it's felt that without a system of required reporting you're not going to have an effective enforcement procedure with respect to the whole question of health card fraud, because the only people who are going to be aware of such fraud are those who are actually involved in or related to the delivery of the service. It's not's going to come to the attention of anyone other than those directly related.
Mr Jim Wilson: If you're talking about the immigration officer, that immigration officer doesn't have a special, confidential relationship with the person coming through the immigration stall at the airport. The physician does, and I would think that physicians and health care practitioners would take exception to being lumped in with "other prescribed persons," given their special relationship.
Mr Wessenger: I think it's really the whole question of, do we have an obligation to in effect correct criminal activity? Health care fraud is a criminal activity, in my opinion, and I think we have to look at it in that way. To report on criminal activity I think is a public obligation that all of us have together. This is the commitment also to the OMA to work with respect to the whole question of dealing with the health care fraud. The Ontario Medical Association has agreed to work in cooperation.
If we take a similar situation, there's a legal obligation for a physician, for instance, to report child abuse. That's an obligation that sits on the physician existing right now in law, or other health practitioner or any person.
Mr Jim Wilson: The physician didn't create the health card system, yet you're asking a physician, among others, to police it.
Mr Wessenger: We're asking them to report suspected criminal activities in the health card area.
Mr Hope: Mr Wilson said this is a type of currency, and I even pulled it out to see if I did sign the back of mine. I've heard the word "fraud" and other words used. I don't see where, in any insurance policy or any currency that is exchanged, there is a signature that is applied to services rendered. I don't know if it's in the proper place, but patients still don't have an understanding of services being rendered, nor verification.
How are you supposed to create fraud or anything else if you're not signing a "service rendered" form or an invoice or whatever it might be saying that these services are rendered? In order to get the health care system straightened out, there are a number of things we have to do. We as consumers have to understand what services are being rendered on our behalf. If the card system is working, then we should be verifying something because you've asked for signatures on the back of the card.
I was looking for a place in this act that talks about actual identification to a consumer of services being rendered and verifying services being rendered. If you're telling me somebody uses this card and signs a document or an invoice, that does show fraudulent. Just because I have a card and the card number is being scratched off, I have not verified, so where is it fraudulent? I'm not a lawyer, so you have to ask the lawyers. What is legally binding, held up in the courts, under this issue?
Mr Wessenger: The provisions dealing with health card fraud in this bill are not really -- I think there are other measures that have to be addressed. As I indicated in my remarks, it's going to involve a more comprehensive approach. This is really only relating to one aspect of the whole question of health care fraud, that is, the reporting aspect of it. The other aspects of it hopefully will be dealt with in other legislation.
Mr Hope: Well, according to the title, it says "Expenditure Control Plan," and I'm just bringing it up under expenditure controls.
Mrs Sullivan: I am quite disturbed, actually, about these amendments. We've had new amendments today to this section in comparison to those which were circulated earlier. The amendments today indicate that the prescribed person -- let's say for now the physician, but it could be an employee in a hospital, it could be a lab technician, it could be a number of people in the health care system -- will report.
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First of all, the mandatory reporting is when the person has a belief that the person who is presenting himself or herself for service or who has received a service or who is presenting himself for reimbursement or who has received reimbursement is not a resident. There are two judgements that the physician or other practitioner has to make: first of all, a belief that the person is not a resident and, second, if the person is not a resident, that he or she is causing fraud. The guess has nothing to do with the fraud; the guess is about the person's residency status, which itself could be the fraudulent act.
Subsequently, in the next section there is a requirement or a provision for voluntary reporting which overrides many other statutes, including the Public Hospitals Act, which require and insist upon confidentiality with respect to patients. That particular section can relate to anything with respect to the administration or enforcement of the act.
There are a number of assumptions here: first of all, that all fraud is by non-residents; second, that all fraud is by the consumer; third, that confidentiality can go by the board. I am not convinced, and I would like to have a legal opinion placed on the table before these hearings are finished, that the physician or other health care practitioner is protected from the liability which the proposed amendments purport to protect them from. With the overriding of the other acts in which confidentiality is required and privileged, the liability of the practitioner is very open.
The other issue -- and I suppose we'll have to hear from not only the College of Physicians and Surgeons but from some of the other colleges -- is with respect to what the scope of practice for the professions allows and requires with respect to confidentiality of information in the patient-practitioner relationship. But what about the non-regulated professionals and how they fit in here?
I think these are issues that really have to be looked at. Does the scope of practice, as the Regulated Health Professions Act is moving forward apace, include the obligation to police the system?
Mr Wessenger: To refer to the act, if we look at section 43.2, "a person," I would assume would mean any person "may report to the general manager any matter relating to the administration or enforcement of this act," and that would involve fraud by any person in the system. It would involve a practitioner as well as a consumer. I think it's very clear that this applies to practitioner fraud as well as consumer fraud.
With respect to the question of protection from liability, I think that's a very broad protection. In fact, if you were going to be critical of the protection, you'd say it was too broad rather than too narrow. In order to not be protected from liability, the person reporting has to act maliciously, that is, not in good faith, and without reasonable grounds. It's not "maliciously or without reasonable grounds"; it's "maliciously and without reasonable grounds." Consequently, it's a very broad exemption from liability. If you wanted to narrow it, you'd change the "and" to "or." With the "and," in my opinion, legally it's a very broad exemption. I'll ask legal counsel just to confirm, as I'm playing lawyer, that I haven't overstepped the legal aspect here.
Mr Williams: The drafting was done in conjunction with legislative counsel and certainly it was drafted to be as broad as possible to encourage as many people as possible to come forward in a voluntary way and report health card fraud.
Mrs Sullivan: Do you have any other advice in writing on this? I think this is an important area. I think every single health care professional body and non-regulated practitioner body that comes before us is going to be asking for that.
Mr Wessenger: I have no objection to asking legal counsel to provide an opinion.
Mr Williams: Perhaps that's a question you might want to address to legislative counsel when they're here during the clause-by-clause.
Mr Wessenger: Yes, that would be more appropriate, because they did the drafting rather than the ministry counsel.
The Chair: Ms Sullivan, would you like to have legislative counsel informed of that question now? Of course they're not here at the table.
Mrs Sullivan: My understanding is that basically the amendments to this bill came forward as a result of negotiation between the OMA and the government; that this particular section of the bill was government-inspired as a result of difficulties with the health card system. Given that the thought for this section originated within the Ministry of Health, I would have thought the Ministry of Health would have an opinion prepared with respect to all the liability that health care professionals may incur as a result of this amendment.
Mr Williams: I'll respond to that as best I can. I think it's fair to say that you'll be hearing from the Ontario Medical Association on the mandatory aspect of the draft you see before you. I think it's also fair to say that on sections 43.2 and 43.3, which is the voluntary reporting and the protection from liability, to the best of my knowledge the Ontario Medical Association is in agreement with the wording in these two sections. They may comment tomorrow, but my understanding is that they are content with the voluntary reporting and they wanted as broad a protection on the liability aspect as we could draft. My understanding from their counsel, from my point of view at the Ministry of Health and discussions we had with legislative counsel was that we were all of the opinion that this provided the necessary protections.
Mrs Sullivan: I have another question that relates to the liability. How would a physician, by example, be judged for not promptly reporting the belief that a person who was not a resident received health care services? How would anybody know if the physician suspected or was passed information? So much of the information we have with respect to health care fraud is anecdotal, based on hearsay. Is hearsay from more than one source reasonable and probable? What do they say here, the belief in the information on which it is based? Those aren't reasonable and probable grounds. It says "reasonable grounds to believe."
Mr Wessenger: I don't know who should appropriately answer that question, but certainly there has been a lot of anecdotal information given by practitioners with respect to the whole question of non-residents. I'll ask Dr LeBlanc if he has any other information he can provide to that. No.
Mr Jim Wilson: Along the same lines, with respect to this voluntary reporting, it seems to me the override is quite strong. It says "despite any act, regulation or other law prohibiting disclosure of the information." How does this affect, for example, the lawyer-client relationship? I know this is voluntary reporting, but as you're overriding all other acts, I assume a lawyer could break confidentiality and voluntarily report a belief that health card fraud has occurred or is occurring. Have you had any chats with the Law Society of Upper Canada with respect to this? I think all professions that have a confidential relationship should be worried about this.
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Mr Wessenger: I'll ask Mr Williams to respond to the question about a lawyer and the confidential relationship.
Mr Williams: Generally speaking, my understanding is that in law, really, other than statutory situations between doctor and patient, and most of those are doctor-patient relations or things that are prescribed by statute, and other than solicitor-client relationships, I'm not aware of any other relationships that are in law considered confidential. My view would be that lawyers reporting clients who have committed fraud would be covered by this, and I'm not sure why it shouldn't be covered.
Mr Wessenger: On a voluntary basis.
Mr Williams: On a voluntary basis, in the same way as any other practitioner.
Mr Jim Wilson: But it's my understanding that we have long cherished the solicitor-client privilege and we have avoided, on many other occasions, doing any damage to that relationship. In a health bill, you're overriding that relationship, although it be voluntary.
Mr Williams: Let's make it clear that the voluntary section is just that: It's voluntary. There's nothing that says a lawyer has to. A lawyer would not be the sort of person I would imagine we'd be prescribing as a prescribed person in the first subsection.
Mr Jim Wilson: But the prescribed person deals with mandatory reporting; I agree with that. This is voluntary reporting.
It seems to me that clients may not want to tell their lawyer certain things. We shouldn't be bringing in, via health bills, impediments to the solicitor-client relationship. I suppose, once you get some case law on this and lawyers start figuring out, "Gee, somebody got nailed pretty bad for not reporting," and it was a prescribed person, it's probably the slippery slope, that you go to the voluntary people too. Were there any discussions with the law society or other bodies that may be appropriate to this solicitor-client privilege?
Mr Williams: I can only answer the legal questions you're asking me. The policy issues, about whether a lawyer should be or would you want one, I can't answer that. We have had no discussions with the law society, but the intention was that this was a voluntary reporting. There's no obligation here; it's strictly voluntary. If the lawyer wants to report, he or she can.
Mr Jim Wilson: The final question with respect to this whole issue of reporting is dealing with the regulated health professions. For example, pharmacists, with the new computer system, are going to have a fair bit of information and understanding of where their patients are coming from. I'm just wondering, with respect to the mandatory section and the prescribed persons, whether the parliamentary assistant would undertake to give us a list of those persons the ministry is currently considering covering under regulation and making reporting mandatory.
Mrs Sullivan: Is there such a list?
Mr Jim Wilson: Given the mixup on seniors' health cards right now, it may be that a pharmacist knows the health card of that person as well. Is it a requirement of the pharmacist to say that Mrs Jones has the wrong health card? It probably won't be Mrs Jones's fault at all. But if the pharmacist doesn't report, there's some pretty heavy-duty penalties.
Mr Wessenger: It's a case of non-residency that has to be reported, not a question of an incorrect card.
Mr Jim Wilson: It's strictly non-residence?
Mr Wessenger: That's right; it's strictly non-resident.
With respect to your questions concerning -- we don't want to deal with lawyers here. Maybe I'll just ask our legal adviser to say what we mean by a "proceeding". Do we mean a court proceeding? Is there some definition? If it says "no proceeding for making a report," does that mean a civil action, or would that include anything beyond that? For instance, would it involve a college in taking a disciplinary action against someone?
Mr Williams: My understanding from discussions with legislative counsel when we were drafting this, because we had several different wordings we were looking at on this section, was that "proceeding" covers all the things the parliamentary assistant referred to.
The Chair: Shall we move on?
Mr Williams: The last set of motions before we get into the title, I can say very quickly, provide for the regulation-making authorities to do all the things I've referred to in the last two hours as being prescribed by regulation. Unless you have some specific question on any one of those particular aspects, I won't go into any greater detail.
Mrs O'Neill: I'm still having trouble with the third-party stuff, so can I go back to the trouble I'm having in the actual bill and then go to the questions I had in the regulations. I'm still having trouble with the two sections that refer to the liability of the individual which, as I see them, are 36.2(3) and then 36.3(1)(c). If I look at the regulations, first of all there's going to be no appeal to the decision in this dispute resolution, which I presume is the body you're referring to that may be established.
Mr Williams: That's correct.
Mrs O'Neill: I wondered how specific you're going to get in that last phrase. People say these are old briefing notes; they were supposed to have been updated October 8, which isn't that old. "Factors to be considered in making decisions." What kind of specificity are we talking about here?
The Chair: While you're finding the right section, I just want to be clear. We've gone back to 36, which is fine, but I take it there are no questions on 45 and 45.1? There are?
Mrs O'Neill: I'm asking questions on that now, but referring it back so they'll know what part, and then the regulations are on the second page.
Mr Williams: I should point out to you that clauses (i) and (j) of subsection (5) of the regulation-making sections are new. Clause (i) is a shortened version of what you had before, and clause (j) is in essence picking up what was taken out of clause (i) and making it a little bit easier to understand.
With clauses (i) and (j), if you look at subsection (5) of 36.3, the section dealing with the third-party services, that allows the court to look at certain things when it's making a determination, that a fee that's been charged is excessive. It has to look at certain things and it may look at other things that it considers relevant. What we are attempting to do in clauses (i) and (j) is to ensure that whatever independent body we establish has the same sorts of powers we gave the court. The body would have to look at certain things, may look at certain other things, and in fact we may require by regulation that it not look at certain things if we don't want it to do that.
Mrs O'Neill: Can you give me some examples of what you mean by "other things"?
Mr Williams: We say that the court has to take into consideration the Ontario Medical Association's guidelines respecting third-party services and its schedule of fees. There's nothing to preclude the court, for example, if in its discretion it wants to look at the Ontario health insurance plan schedule of benefits and compare it to the Ontario Medical Association schedule. It could do that, or it could look at any other things it considers relevant to determine whether the charge was excessive.
Mrs O'Neill: What I'm still wondering about is the liability of the individual. In terms of this body that's going to be established, is that going to make their life easier if they don't have to go to court? But with the no-appeal business, I wonder just how secure whatever they will have achieved will be.
Mr Williams: We're not talking about a situation that the patient's going to pay or not pay. The sort of situation we're talking about is where, for example, the patient is charged a fee by a doctor; the patient then tries to get reimbursement from the third party, assuming the third party's not billed by the doctor, and what happens is that the third party says: "You've been charged $70. I think the correct fee is only $50. You should have only been charged $50, and that's all I'm prepared to pay you." That's the sort of situation we're thinking about, where the patient will take both the doctor and I guess the third party to court and say, "You reimburse me for the total amount and you, doctor, pay me the difference." The court has the authority to require the doctor to pay the difference to the patient.
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Mrs O'Neill: That's an awful lot of time for $20 or $25. I guess I'll have to leave that for now. Maybe some of the presenters will bring some of this to light as well.
Mr Williams: I would suggest that the chances of a third party refusing to pay for such a small amount, the chances of those sorts of situations arising, are probably fairly slim.
Mr Jim Wilson: With your indulgence, Mr Chair, I'd like to go on to not the specific amendment to the amendments. Bill 50 being an amendment to the Health Insurance Act is what I'd like to talk about and the delisting provisions contained in the original printed bill of June 14, which would be the section changing clause 45(1)(i) of the act.
The Chair: Just before we do that, there was a clarification that I believe ministry staff wished to make to one of the questions earlier asked. Then we'll come back to your question, Mr Wilson.
Mr Wessenger: I believe it related to Dr LeBlanc's comments on pharmacists. He wished to make some further comments.
Dr LeBlanc: The question was asked about the contracts entered into post-June 14. Not paying attention to the nicety of which act practitioners get paid under, I talked about all practitioners who had and did not have contracts. The amendment here only relates to those paid under the Health Insurance Act. While it is true that pharmacists do not have a contract, they are not paid under the Health Insurance Act, so I don't think they are covered by that contractual override provision. I just wanted to make that point clear.
The Chair: I just note that we have 20 minutes. After this section, I believe it is just the question of the title, short and long, that we need to deal with. I just note that for members of the committee.
Mr Jim Wilson: I think it's important that we spend that time. I think, through studying these delisting authorities, the public will get a sense of where the critics are coming from. We recall that when this bill was first introduced in the House and we had some debate on it, although limited, at that time we were talking about psychoanalysis and removal of port wine stains, in vitro fertilization, circumcision; a number of possible and real delistings.
I would like from the parliamentary assistant or anyone else from the ministry a very quick overview of where the government and the OMA are with respect to the $20 million worth of delistings that have to be found as a result of the agreement in each of the next three years; and before that, would legal counsel explain to us how the amendments to subsection 45(1) contained in Bill 50 to amend the Health Insurance Act change the status quo with respect to how delistings will be done in the future.
Mr Wessenger: I think the only thing we can answer with respect to that, other than what the minister said, is perhaps to indicate how the process works. Perhaps that might be the appropriate --
Mr Jim Wilson: I pretty well know how the process works. Mrs Sullivan asked this very specific question in the House the other day and we didn't get anywhere there. I'm just wondering if anybody wants to shed some light.
Mr Wessenger: I don't think I can assist you much further, unless you wish some assistance with respect to the question of process. I would not attempt to answer the details of the process myself today because I don't have it in front of me and I might miss something. I don't really think I can add anything further than the minister has indicated on that.
Mr Jim Wilson: I don't recall whether the minister gave us any time lines or not for when all of this would be decided. The minister did indicate to Mrs Sullivan and has indicated to me in the past that there would be some public input. It sounded to me that in response to Mrs Sullivan's question, Ruth Grier said: "Yes, the OMA has a list of services we're going to deinsure, and the government has its secret list. We're going to compare the two lists" -- and then it sounded like there would be a cooling-off period where the public would be involved. I want to know whether that's a political line or whether there's a real commitment out there to involve the public in this delisting process.
Mr Wessenger: As I said, unfortunately I don't have the details in front of me, but I understand that there will be public involvement with respect to the final decision with respect to the matter of which items that come from both lists would be considered.
Mr Jim Wilson: In order to meet your expenditure control plan, what's the time frame of the $20 million you have to delist this year?
Mr Wessenger: I'll ask Dr LeBlanc to --
Dr LeBlanc: First, as a point of technical correction, as I'm aware, there is only one time. It's not each year; there's just one $20-million exercise.
Mr Jim Wilson: It's $20 million over three years then?
Dr LeBlanc: No, it's a one-time adjustment. It was planned to take effect January 1, 1994. I think we're somewhat behind the time and we're going to have to run pretty fast to make that. I think the minister will make her announcements on the process when she deems the time appropriate, but it is very active work, and you are correct in understanding the minister's observation that it would involve the opportunity for the public to participate.
Mr Jim Wilson: So it'll be Dr Ruth's Christmas gift to the people of Ontario when she delists these things.
Could I go on to just having the more legal explanation of how Bill 50 changes the current way things are delisted in the province, what new powers or deleted powers etc?
Mr Wessenger: I will ask, are there any new powers in this regard?
Mr Williams: There's nothing in the present bill or the motions -- when I say "the present bill," the bill as it will be amended -- that affects the schedule of benefits at all whatsoever. That section has been now taken out.
Mr Jim Wilson: If you look at --
Mr Williams: Are you looking at the motions or are you looking at the original bill?
Mr Jim Wilson: No, I'm looking at the original bill that was presented on June 14. I must say that the actual numbering of this particular bill is the most confusing thing I've seen. I think we're in section 2. Anyway, it's the section dealing with clause 45(1)(i) of the Health Insurance Act. It says "prescribing services that shall be deemed not to be insured services, or not to be insured services in prescribed circumstances, and prescribing the circumstances." Then there's an addition of (i.1), which doesn't appear in the original Health Insurance Act. To me, this changes the Health Insurance Act. I've compared the two. I've had discussions with people about what it does.
Mr Williams: If I can go back to my original --
The Chair: Can I just note for those who undoubtedly are following this at home with their own copy of the original act that this is in the middle of page 3.
Mr Jim Wilson: Could I just ask what the numbering of that clause is I've referred to in Bill 50?
Mr Williams: To go back to my earlier comments, all those sections of the bill will now be disappearing as a result of the motions the government will be moving. If I can take you back to the top of page 2 of the bill, forget the new motions for a second and we'll just look at the old Bill 50 and I'll tell you what's left.
You'll notice there's a subsection (2) that talks about the Medical Review Committee; that section remains. The (2.1), which is the section referring to the number of members of the Medical Review Committee, remains. There's a subsection (3) which has a bunch of paragraphs going down: 1, 2, 3, 4, 5. Those are sections referring to the practitioner review committees; that remains. Likewise, the (1.1) that follows that subsection and deals with the number of members of the practitioner review committees remains.
The balance of the bill as you see it, down to the Hospital Labour Disputes Arbitration Act, will all be coming out, except for one or two of the regulation-making powers which will be put back in, which deal with the prescription of the number of members of those two committees that I just referred to. So the balance of the bill and the issues that you're raising now, those will no longer be part of the bill.
Mr Jim Wilson: I appreciate that clarification. With respect to delistings, then, could we have an overview of what the current procedure is? Because in dealing with groups concerned about in vitro fertilization, concerned about other possible delistings, I think they deserve an explanation of how it's done now behind closed doors, through regulation. How do you get legislative authority to implement the OMA agreement? It raises the question, are the two lists being submitted, one by the government, one by the OMA, and there was no need to have any legislative authority for the process?
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Mr Williams: There's currently authority in the Health Insurance Act, under subsection 45(1), to prescribe what are insured services and those things that are not insured services. To the extent that we need legislative authority, it's already in existence.
The only caveat I would put on that is that we have agreed with the Ontario Medical Association that we would consult with it before we made changes to that schedule of benefits. In fact, in the current agreement, which Dr LeBlanc has referred to, we now have a process where we'll be involving the public as well.
Mr Jim Wilson: In this act and the intact provisions with respect to the delisting by regulation that currently exist in the Health Insurance Act, this act and any amendments thereto in no way override your current agreement, because of the date you've put in with respect to the OMA agreement.
Mr Williams: Just to give you some history --
Mr Jim Wilson: Because of the June 14 date or whatever.
Mr Williams: -- the fact we already have the agreement doesn't really change what we'd been doing for years before we even entered into an agreement with the OMA. In essence, the schedule of benefits that was in place was as a result of a schedule we got from the doctors themselves actually.
Mr Jim Wilson: I know, but I think both opposition parties are well aware of how things were done in the pharmacists' sector in the past and how they're done today. Now that they've unionized the OMA, you're going to be treated like a union. You'll go into hard collective bargaining and, unless you have it in writing, you'll want to make sure no legislation comes along to override any agreements you have. Just to be perfectly clear in my own mind, you have, is it June 14, and this bill doesn't override any agreement signed thereafter and that's the protection overall for the government-OMA agreement?
Mr Williams: That's correct.
Mr Jim Wilson: And it takes us up to April 1, 1996?
Mr Williams: That's correct.
Mr Jim Wilson: The OMA agreement talks in some areas about things extending into the year 2000. I was confused about that.
Mr Williams: Dr LeBlanc can answer better on that.
Dr LeBlanc: The existing agreement, which was entered into on June 4, 1991, made provision for a six-year economic agreement. So the way to think of it is that between the second year and the third year, which is this year, you cut the two pieces apart and insert three years, so that the third, fourth, fifth and sixth years got pushed into the future. Those are the same third, fourth, fifth and sixth years that pre-existed prior to June 14. This is a three-year insertion. Therefore, in effect, the economic agreement, as a result of that, becomes a nine-year agreement: one, two, a, b, c, three, four, five, six. That makes all of us feel the next century's pretty close, because it gets right up tight to the turn of the century.
Mr Jim Wilson: Would you undertake to give us a copy of the 1991 OMA agreement, to make sure we all have it?
Mr Wessenger: Yes, certainly.
Mrs Sullivan: Does this mean there are no critics' statements?
Mr Jim Wilson: I'd be happy to give Mrs Sullivan the next five minutes. I've spoken for an hour and a half. I don't think I can think of any creative new twists on this one.
The Chair: That's why I asked for one of the statements and I thought the response was that you were doing that through your questions.
Mrs Sullivan: I certainly wanted a chance to put some issues on the table.
The Chair: Perhaps tomorrow. We have three witnesses which would presumably provide some time. The Chair is always prepared to look liberally at the clock.
Mr Jim Wilson: I don't think there would be any objection, certainly none from myself, if Mrs Sullivan wanted to put some issues on the table which might be fruitful for tomorrow's discussions.
Mrs Sullivan: It certainly won't take long, but I think there are some issues that should be there.
The Chair: There were just two amendments left that we hadn't discussed, that dealt with the title. Can I just ask, was there any question about those or shall we leave them and if something comes up, it can come up in clause-by-clause?
Mr Williams: I assume those are self-explanatory, but if you have any questions as to why we've changed the titles, I'd be glad to explain them.
Mr Jim Wilson: Is there anything we should know as to why you changed the title?
The Chair: Mrs Sullivan, if you want to make some comments, it's six minutes to 6.
Mrs Sullivan: As you know, we started out with the first approach to Bill 50, as it was introduced in the House, with the belief that the bill was a disgraceful piece of legislation. Our position was that it should have been withdrawn in its entirety, that it was an attack on the Canada Health Act and on the Ontario Health Insurance Act and was highly problematic.
There are still some reasons to consider that the bill should be withdrawn, albeit now having seen the government's intentions with respect to amendments. We believe that Bill 50 was put forward in the most cynical way as a ploy for negotiating with the OMA and that it was a thinly disguised threat. I believe that went too far, that people in various communities across Ontario and patient organizations, groups of people who are receiving care and who were frightened by the implications of Bill 50, were in fact caused additional stress by the way this bill came forward.
We are concerned about how well thought out some of the issues are in this redraft. We'll be interested in hearing extensive testimony on the third-party billing issues and, I would hope, some of the requests that I have put on the table today with respect to which acts and regulations require physicals and other medical checks. We are concerned about where the unregulated health worker, an employee or a job applicant, is left in terms of liability. I think that while inoculations are excluded, according to the parliamentary assistant, there are many other areas where physicals are required, and we would want pretty firm evidence that there is no rational health reason to discontinue those physicals.
I think that the provisions in the amendments to Bill 50 on physician resources are just so minimal as to be embarrassing. I hear Dr LeBlanc when he says this is not an entire physician resources policy, this is not an entire underserviced-area policy. The approach here is inadequate. We have seen the government bounce from whim to whim on the entry of new physicians into practice, on how individuals are going to be allowed to go into what is apparently an underserviced area, how they're going to be compensated and so on. There is no full physician resources strategy or health personnel strategy.
I think it's about time that the Ministry of Health stopped being simply a claims benefit payment vehicle and addressing issues in those terms and started to look at the patient-based need, to provide a timely access to service provided by practitioners who are competent to provide that health service, and that emergency care and life support are given high priority and that small rural communities are not left out overnight or on the weekends because those services are not available.
I also don't believe that the kind of limitations around this physician resources policy as described here are appropriate. One has to deal with physician resources not at the end of the scale, as people are entering practice, but at the beginning of the scale, as people are looking to make choices for entering the profession of medicine. To say that for a three-year period these bets are on and subsequent to that period those bets are off and there will be something else means there is very little opportunity for young people who are not only planning their professional life but making choices many, many years ahead. In high school, they are choosing courses that will ultimately lead into medical school, if that's what their career interest is. They are choosing extracurricular activities that will assist them in going there.
The decisions about physician resources can't be made as people are entering the practice of medicine, as this bill will impose for the next three years. It should be made in a longer-term, integrated strategy that includes alternative remuneration models, that includes all the issues that have been raised, but there should be an integrated strategy. It should not be developed in the Ministry of Health by itself. I think this bill is sadly wanting in terms of that kind of strategic thrust for physician resources.
On the fraud reporting, I think we are going to hear many other interventions before the committee. I don't see my physician, and I don't think physicians see themselves, as policing the system. I think it's clear that they are concerned. We've certainly heard those concerns in the public accounts committee and elsewhere with respect to the potential for fraud that exists in the health system.
In my mind, there is no accurate measure of fraud. We've seen a fairly sloppy report that projects fraud and risk to the system over a broad range of areas and we're now seeing demands being made on professionals to report only certain aspects and only certain areas, with questionable repercussions to themselves from a personal point of view and from a professional point of view. Once again, I think the strategic base is not there and I am very concerned about these sections of the bill.
Mr Chairman, as we conclude and just so we will know when we ultimately reach clause-by-clause, I wonder if we could have some indication before we proceed of what sections of the amendments are in order to proceed with when we get to the clause-by-clause part of the bill. I suspect that many of the new amendments are not in order and I think we should know that.
The Chair: I'll take that under advisement. It now being, in the immortal words of the Speaker, 6 of the clock, the committee will stand adjourned until tomorrow at 3:30 here.
The committee adjourned at 1804.