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Appeal Court Dicta

Medical - Ontario Health Insurance Plan (OHIP)

. Wilkin v. Health Services Appeal and Review Board

In Wilkin v. Health Services Appeal and Review Board (Div Court, 2023) the Divisional Court considered a JR brought by a doctor who objected to OHIP's calculation of his billing submitted under the Schedule of Benefits for Physician Services, R.R.O. 1990, Reg. 552/92 (“Schedule of Benefits”). The specific issues were OHIP's use of expert evidence on the interpretation and application of the billing codes.

In these quotes the court reviews the OHIP billing assessment procedure:
[8] Two witnesses testified at the hearing before the Board, the Applicant and Dr. Davidson. The Applicant testified about his rationale for the billing codes he submitted under the Schedule of Benefits for Physician Services, R.R.O. 1990, Reg. 552/92 (“Schedule of Benefits”).

[9] Dr. Davidson, on behalf of OHIP, testified as to how OHIP claims are assessed, the interpretation, application, and amendments to the Schedule of Benefits, and described the Ministry of Health’s rationale for disallowing the disputed fee codes in this case.

[10] The Applicant objected to Dr. Davidson giving opinion evidence on whether the claims in this case had been properly assessed. The Board ruled that it should hear the evidence because it would be relevant and helpful. The Board Chair noted that much of the evidence as described did not sound like opinion evidence, but that counsel could object to any opinion evidence. The Chair also observed that the Board was aware that Dr. Davidson was not a lawyer, and that questions of statutory interpretation would be for the Board to determine. Counsel for the Applicant chose not to object during the examination-in-chief of Dr. Davidson. Counsel cross-examined Dr. Davidson and raised a challenge to aspects of that evidence in her final submissions.

[11] This ruling was specific to the evidence and the context of the dispute before the Board. It is a common exercise of statutory decision-making that administrative tribunals will determine the purpose, weight, and admissibility of the evidence before them. There is nothing on this record that lifts the question of Dr. Davidson’s evidence into the broad and significant category that would require a single determinate answer.


[21] Dr. Davidson testified first about her background and expertise, the nature of her role with OHIP, the claim and adjudication process within OHIP, and communications issued from OHIP to physicians to assist with billing. This can fairly be described as general fact and context evidence. It is not the subject of controversy.

[22] Dr. Davidson testified about the steps she took relative to Dr. Wilkin’s claims for treatment. She became involved after the OHIP assessment when Dr. Wilkin sought review by the Board. At that stage, she reviewed the material and provided a third level of review of the disputed codes OHIP payment decisions and denials. Counsel for the Applicant objected on the basis that Dr. Davidson’s opinion on the point was not admissible. Counsel’s objection was grounded in the submission that Dr. Davidson was not a “participant” expert. Counsel also raised fairness concerns because Dr. Davidson’s role in “adjudicating” the claim had not been disclosed until this stage.

[23] The Board permitted a further question from counsel for OHIP, concerning the steps that would have been taken had Dr. Davidson disagreed with OHIP’s decision.
. Attallah v. College of Physicians and Surgeons of Ontario

In Attallah v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court usefully explained an example of the OHIP system from the patient's and the physician's perspective:
[5] OHIP is a publicly funded payment system for Ontario’s physicians. It operates as a trust-based “honour system,” with finite resources. As OHIP is a third-party payer, the “customer” does not receive a bill and is generally unaware of what services the physician bills for. When physicians receive a billing number from OHIP, they are provided with educational materials including the Schedule of Benefits, the document that establishes how much physicians are paid for their services. Physicians are expected to familiarize themselves with the billing codes that pertain to their practice and to stay informed of periodic update bulletins from the Ministry regarding billing. When the Appellant applied for his billing number, he signed an acknowledgment of his responsibility to have read and understood the Schedule of Benefits and other relevant documents. As well, he acknowledged that he bore sole responsibility for complying with the Schedule of Benefits and for the veracity of his OHIP claims.

[6] Only two categories of billing codes used by family physicians are at issue in this case: “A” codes, which are assessment codes; and “K” codes, which are counselling codes. Unlike most OHIP codes, K codes are time-based. They are billed in units requiring a minimum amount of time spent in direct contact with the patient: one unit is at least 20 minutes; two units is 46 minutes; and three units is 76 minutes. All insured services have “constituent and common elements” which are included in the service a physician is paid for. For both K and A codes, this includes “obtaining and reviewing information from any appropriate source”, including the patient’s representative. Further, “assessments” include “discussion with … the patient’s representative … on matters related to the service.”

[7] Physicians cannot claim both a K code and an A code for the same patient on the same day (subject to certain exceptions); if they do, their billings will be automatically rejected.

[8] The A codes and three of the K codes at issue involve care provided directly to a patient. Other K codes in issue, in particular K002, involves an interview with a patient’s relative, rather than care provided directly to the patient. This service can be billed in the limited circumstance where a physician conducts an interview with a relative or other person authorized to make a treatment decision on the patient’s behalf, for a purpose other than to obtain consent. The Schedule of Benefits states that this applies to “situations where medically necessary information cannot be obtained from or given to the patient or guardian, e.g. because of illness, incompetence, etc.” It cannot be billed for “inquiry, discussion or provision of advice or information … to a patient’s relative or representative that would ordinarily constitute part of an assessment.” The interview must be booked as a separate appointment lasting at least 20 minutes. It must be billed to the OHIP number of the patient, not the family member. It cannot be billed on the same day as an assessment of the patient: if both a K002 and an assessment are billed for a patient on the same day, the K002 bill will be rejected.
. 1582235 Ontario Limited v. Ontario

In 1582235 Ontario Limited v. Ontario (Ont CA, 2020) the Divisional Court canvassed Ontario's regime for paying medical professions under the Health Insurance Act and the Independent Health Facilities Act, which had recently been amended:
[11] Medical services performed by physicians in Ontario are generally funded on a fee-for-service model. Under this model, physicians submit billing claims for insured medical services to the General Manager of the Ontario Health Insurance Plan (“OHIP”). OHIP will then pay the physician a professional fee for each service according to the fee codes set out in a Schedule of Benefits and Fees. This funding regime is governed by the HIA and its regulations.

[12] Funding for IHFs is governed by a separate statute, the IHFA. IHFs may charge “facility fees” to the Ministry on a fee-for-service basis in respect of overhead or operating costs and services that support the provision of the insured medical service. By way of example, if a radiologist reviews an ultrasound, a professional fee may be billed to OHIP for that insured service. Additionally, the IHF where the ultrasound image was generated will be entitled to charge a separate facility fee associated with that service. This latter fee, the facility fee, is meant to cover, amongst other things, the cost of the equipment and having a technologist produce the ultrasound image.

[13] Pursuant to the IHFA, the licensing process for IHFs is overseen by the Director of Independent Health Facilities (the “Director”) in the Ministry.


Legislative Amendments

[17] As previously noted, in December 2019, the HIA and the IHFA were amended. Amongst other things, the amendments replaced the PPRB with the HSARB in the HIA. The new IHFA now also expressly authorizes the Ministry to form an opinion on the overbilling of facility fees, which immediately gives rise to debt for which the Ministry can engage in set-off. After the Ministry has formed this opinion, a licensee can, pursuant to the IHFA, request a hearing before the HSARB.


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