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Medical Law - OHIP - Coverage. 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 OHIP's medical procedure insurance coverage:[22] OHIP pays for insured medical services for residents in Ontario. “Insured services” include medically necessary services rendered by physicians as may be prescribed by regulations: Act, ss. 1, 11.2(1) and 12. A service rendered by a physician in Ontario is an insured service if it is “referred to in the schedule of benefits and rendered in such circumstances or under such conditions as may be specified in the schedule of benefits”: Regulation 552, s. 37.1(1). Additional requirements must be met if funding is sought for the service to be provided outside the country.
[23] The Act, through its regulations, also contains a long list of services that are not insured. For example, s. 24(1)(17) of Regulation 552 states that treatment for a medical condition that is generally accepted as experimental in Ontario is not an insured service “unless, in the case of services rendered by physicians, they are specifically listed as an insured service or as part of an insured service in the schedule of benefits.” In other words, if a service is “specifically listed” in the schedule of benefits, the exclusion for experimental services does not apply. . Ontario (Health Insurance Plan) v. K.S. [foreign procedures]
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 OHIP coverage for procedures outside of Canada:[50] Regulation 552 contains additional eligibility requirements for services provided outside Canada to be insured. Section 28.4(2)(a) of Regulation 552 says that services rendered at a hospital outside Canada are prescribed as insured services if “the service is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person.” OHIP now argues K.S. should be denied funding because she cannot meet the criteria for obtaining funding to have surgery out of the country.
[51] The difficulty with OHIP’s position is that OHIP did not but could have raise the application of s. 28.4(2)(a) of Regulation 552 before the Board. OHIP filed two submissions with the Board in support of its denial of funding to K.S. Initially, OHIP defended its conclusion that vaginoplasty is not a listed service. OHIP first argued that K.S.’s requested surgery was not covered by Part B of paragraph 17 of Appendix D because those provisions deal with “sex-reassignment surgery” and the surgery K.S. wants will not result in a reassignment from one sex to another. In its supplementary submissions OHIP raised an alternative argument for denying K.S. funding, namely that vaginoplasty without penectomy is not an insured service because it is considered experimental in Ontario and, therefore, excluded under s. 24(1)(17) of Regulation 552. In support of its supplementary argument, OHIP filed expert evidence from Dr. Krakowsky. This supplementary argument – that vaginoplasty is an excluded service because it is considered experimental – was not articulated in OHIP’s June 2022 letter denying K.S. funding. In other words, OHIP understood it could raise new issues before the Board to defend its decision to deny funding to K.S.
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