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Medical - Ontario Health Insurance Plan (OHIP). General Manager, OHIP
In General Manager, OHIP (Div Court, 2023) the Divisional Court considered (and granted) an amicus intervention leave motion, here in an OHIP appeal from a decision of the Health Services Appeal and Review Board (HSARB) regarding transgender and nonbinary-related surgery:[3] The decision under appeal found that the respondent’s requested surgery, vaginoplasty without penectomy, was an insured service under the benefits schedule which applies to medical insurance in Ontario (the “Schedule of Benefits”). The respondent, K.S. is a nonbinary person who seeks this surgery.
[4] The issue on appeal concerns the interpretation of “vaginoplasty” in the Schedule of Benefits. In the affidavit filed in support of the motion to intervene, Helen Kennedy, the Executive Director for Egale describes the issue on the appeal as one that concerns a funding decision for gender-affirming care, an area of medical service sought by members of the trans and binary communities.
[5] Egale is a non-profit organization that advances equality and justice for 2SLGBTQI people across Canada since its establishment in 1986. In that capacity, and as set out in detail at paragraphs 8-17 of Ms. Kennedy’s affidavit, Egale has been granted intervener status in related proceedings, made policy submissions at the federal, provincial, territorial and municipal levels of government, and has provided expert evidence in matters involving issues of particular interest to these communities, including access to gender-affirming care.
[6] Egale anticipates making three submissions in this appeal:(a) There has been a long history of prejudice and discrimination against trans and nonbinary people in Canada, which have been recognized as disadvantaged groups in the country. Egale will make submissions in support of its position that these disadvantages are manifested by barriers that are experienced by trans and nonbinary people in accessing healthcare, including receiving medically necessary gender-affirming care that connected to better mental health outcomes and the reduction in rates of suicide.
(b) HSARB interpreted the Schedule of Benefits under Regulation 552 of the Health Insurance Act according to the normal principles of statutory interpretation, and in particular, it was appropriate for HSARB to inform its interpretation of the Appendix D to the Schedule of Benefits (entitled “Sex-Reassignment Surgery”) by reference to the World Professional Association for Transgender Health (“WPATH”) Standards of Care, which publishes Standards of Care for the Health of Transgender and Gender Diverse People and recognizes that gender diverse presentations may lead to individually customized surgical requests.
(c) Any ambiguity in the legislation require that the interpretive analysis be conducted in a manner aligned with human rights legislation and Charter values. [7] Egale submits that it is uniquely positioned to make useful and distinct submissions on the issues raised by the appeal. Egale’s involvement and its submissions would not expand or create new issues on the appeal but would inform the Court on the distinct challenges that trans and nonbinary people face in accessing appropriate gender-affirming care.
[8] Rule 13.02 of the Rules of Civil Procedure empowers a judge to grant leave to an intervener “as a friend of the court for the purpose of rendering assistance to the court by way of argument.” The court should consider the nature of the case, the issues involved, whether the intervening party will make a useful contribution to the resolution of the dispute and whether the intervention will cause any injustice or undue delay: Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.).
[9] I am satisfied that Egale has met the test to intervene as a friend of the court. It has experience and expertise on the systemic and historical disadvantages affecting access to gender-affirming care by trans and onbinary individuals in Canada. Its history of servening as an intervener is an indication that Egale has experience with the role of intervener and its function to assist the court in understanding the implications of its decision. Egale is prepared to serve and file its material in accordance with the timeline fixed by the court, thus avoiding any unnecessary delay. No party objects to the order granting leave, which indicates the parties do not believe that Egale’s intervention will cause injustice.
[10] Accordingly, I make the following order:
[11] The motion of Egale for leave to intervene as a friend of the Court is granted on the following terms:(a) Egale may file a factum not exceeding 20 pages on or before the date set by the Court;
(b) Egale may present oral argument not exceeding 30 minutes at the hearing of this Appeal;
(c) Egale shall coordinate with the parties and make best efforts to avoid duplication of submissions;
(d) Egale shall not raise new issues or adduce new evidence; and
(e) There shall be no costs awarded for or against Egale in respect of this motion for leave to intervene and the intervention. . 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.
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[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.
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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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