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Medical - Health Services Appeal and Review Board (HSARB). Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health)
In Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health) (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from a decision of the HSARB that upheld decisions of the Minister of Health that required the appellant "to reimburse the Minister for payments totalling over $1.1 million for facility fees that Dixie billed to the Minister for radiology services".
Here the court illustrates the evidentiary intricacies of an HSARB proceeding relating to "the Ministry’s Decisions requiring the reimbursement of facility fees":IV. Board’s review of Ministry’s Decisions
[18] On August 24, 2022, Dixie’s counsel requested a hearing before the Board to review the Ministry’s Decisions requiring the reimbursement of facility fees: see IHFA, s. 24.9(1)2. The Board’s review of the Ministry’s Decisions proceeded to a four-day hearing by videoconference in March 2023.
[19] Before the Board, there was no dispute that during the Review Period, Dixie appropriately billed facility code J182 for extremities ultrasounds: Decision, at para. 70. The Board identified the issue as whether, for the Review Period, Dixie appropriately billed facility fee codes J182 and J193 together, which depended on whether Dixie performed a peripheral vessel assessment (J193) each time it claimed a facility fee for an extremities ultrasound (J182): Decision, at paras. 71-72. According to the Board, at para. 73, that determination depended in turn on whether “adding Doppler to an extremities ultrasound to assess blood flow … is a peripheral vessel assessment as contemplated by J193”. At para. 74, the Board stated that if so, it must then consider “whether the records support that Doppler was otherwise requested and performed in accordance with the Act and SOFF.”
[20] At the Board hearing, the Board heard testimony from three radiologists called by Dixie, one of whom was one of Dixie’s owners. The other two radiologists were qualified as independent expert witnesses: Decision, at para. 11. The only witness the Ministry called was a Medical Advisor, Provider Audit and Adjudications, Ministry of Health, a former family physician who is not a radiologist: Decision, paras. 12, 127.
[21] Before the Board, Dixie submitted, among other things, that the use of Doppler technology when performing an extremities ultrasound allowed Dixie to also claim a facility fee for a peripheral vessel assessment because Doppler provided enhanced diagnostic interpretive results of the resulting image. In support of that position, Dixie relied on its radiology witnesses, who testified that Dixie had a “standing order from its radiologists … to add Doppler to each extremities ultrasound because [Dixie’s] radiologists believe this to be medically necessary in every case as it provides valuable clinical information about the patient’s condition beyond what a non-Doppler ultrasound provides” (emphasis added): Decision, at para. 37.
[22] Relying on its witnesses, Dixie also submitted that adding Doppler to an extremities ultrasound qualifies as an “additional service” that may be separately billed, as contemplated by s. 6 of the General Preamble of the Schedule, which states:6. Where a referring physician requests a single site imaging study, any additional imaging study is not an insured service and shall not be charged to the ministry unless the additional study is medically necessary as requested by the radiologist or referring physician and documented in the patient’s record. [Emphasis added.] [23] Dixie submitted that the requirements of s. 6 of the General Preamble were met since (i) the standing order “constitutes a request by a radiologist”, and (ii) the “images showing Doppler was used [based on certain markings on the images such as boxes and colour bars] are stored in the patient’s record”: Decision, at para. 83.
[24] The Board did not accept Dixie’s submission that the use of Doppler when conducting an extremities ultrasound constituted a peripheral vessel assessment that is billable using facility fee code J193. At paras. 123-124, the Board, found as follows:For the reasons that follow, the Appeal Board finds that peripheral vessel assessments as described in facility fee code J193 were not performed in each instance where the Appellant claimed a facility fee for an ultrasound of an extremity under J182.
Specifically, the Appeal Board finds that adding Doppler to an extremities ultrasound under J182 to assess the blood flow or vascularity of tissue within the smaller vessels (including arteries), is not a peripheral vessel assessment as contemplated by J193. [Emphasis added.] [25] To support its conclusions, the Board relied on the testimony of the Medical Advisor, the Ministry’s sole witness. The Board found that the Medical Advisor was permitted to provide opinion evidence as a “litigant’s employee with expertise”, relying on the 2015 decision of the Alberta Court of Appeal that had been applied in Ontario by the Divisional Court in a decision released four months after the Board hearing. The Board did not first notify the parties that it would be considering the concept of a “litigant’s employee with expertise” or the related case law.
[26] At paras. 125-127, the Board stated:The Appeal Board has wide latitude to admit opinion evidence. This flows from section 15 of the Statutory Powers Procedure Act (SPPA) and the case law. While [the Medical Advisor] was not qualified as an independent expert or participant expert, the Appeal Board finds that she did meet the criteria for a third type of witness, that being a litigant’s employee with expertise.
This category of witness was recognized in Kon Construction v. Terranova Developments Ltd., 2015 ABCA 249, 602 A. R. 327 as a potential source of opinion evidence, as referred to by the Ontario Divisional Court in the recent case of Wilkin v. Heath Services Appeal and Review Board, [2023 ONSC 4286,] 2023 CanLII 4286 (Div. Ct.) at paras. 35-36. The Court in Wilkin determined that the Appeal Board appropriately treated a similar Ministry employee who provided her opinion on the interpretation and application of the Schedule of Benefits (the equivalent Schedule to SOFF pertaining to physician fees for insured services) as “a witness with expertise as to the processing of claims”.
[The Medical Advisor] has been a Medical Advisor in the Provider Audit and Adjudication Unit at the Ministry since 2007. Based on this experience, the Appeal Board finds that [the Medical Advisor] is an employee with expertise in the interpretation and application of fee codes in the SOFF and the Appeal Board has considered her opinion in this capacity. In addition, the Appeal Board notes that she has knowledge having practised as a family physician.
[Emphasis added; footnote omitted.] [27] As outlined further below, the Board, at paras. 128-145, went on to consider the issues in the review application, including the extent to which medical records supported Dixie’s claim for facility fee J193 for a peripheral vessel assessment when an extremities ultrasound was performed. In its analysis, the Board considered the Medical Advisor’s evidence as well as the evidence of Dixie’s radiology witnesses.
[28] At paras. 147-149, the Board concluded:The Appeal Board finds, based on a plain reading of the SOFF provisions and the above evidence, that J193 does not include the addition of Doppler to an extremities ultrasound to assess blood flow or vascularity of tissue within the small vessels including arteries.
The Appeal Board finds that the Appellant has failed to establish that the Minister’s decision is not in accordance with the Act. The Appellant has not established that a peripheral vessel assessment as contemplated by J193 was performed every time an extremities ultrasound was performed under J182 and thus the Appellant was improperly paid for peripheral vessel assessments that were not performed.
The Appeal Board finds that the Respondent has properly required reimbursement from the Appellant pursuant to the provisions of section 24.3 of the Act. [29] On that basis, the Board affirmed the Ministry’s Decisions to require reimbursement of facility fees from Dixie: Decision, at para. 150. . Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Div Court, 2024) the Divisional Court dismissed an OHIP appeal under Health Insurance Act [s.24(1,4)], where the primary issue was that a "vaginoplasty without penectomy" was "not a listed procedure in the Schedule of Benefits" "and is, therefore, not an insured service."
Here the court considers the HSARB's OHIP appellate remedies:[49] On an appeal, the Board has the power to direct the General Manager of OHIP to take such action as the Board considers the General Manager should take in accordance with the Act and the regulations: Act, s. 21(1). OHIP argues the Board exceeded its jurisdiction by ordering the General Manager to fund K.S.’s surgery without considering the other eligibility criteria.
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