Canada: Bill 138: Amendments To The Independent Health Facilities Act And Health Insurance Act
Health Law Bulletin

Bill 138, the Plan to Build Ontario Together Act ("Bill 138"), which includes amendments to the Independent Health Facilities Act ("IHFA") and Health Insurance Act ("HIA"), was introduced by the Ontario Minister of Finance on November 6, 2019 and received Royal Assent on December 10, 2019.¹

This is the third bulletin in our series on the health sector impacts of Bill 138. We provided a brief overview of Bill 138 and its amendments to the IHFA and HIA in our first bulletin² in the series. Our second bulletin³ discussed the amendments introduced by Bill 138 to the Personal Health Information Protection Act, 2004. This bulletin will describe the amendments to the IHFA and HIA in greater detail.

We note that amendments to Bill 138 were made by the Standing Committee on Finance and Economic Affairs (the "Standing Committee") between the second and third reading. The only amendments related to the health sector were to the HIA. We will discuss the amendments made to Bill 138 by the Standing Committee below.

Amendments to the Independent Health Facilities Act

Schedule 19 of Bill 138 enacts amendments to the IHFA. The amendments came into force upon Bill 138 receiving Royal Assent.⁴ The amendments to the IHFA include new rules regarding applications and licences, record-keeping, and compliance orders. The amendments also introduce increased fines for non-compliance with the IHFA.

Application and Licences

Bill 138 changed the "request for proposal" process under the IHFA to a "call for application process". Although some comments have suggested that this is a noteworthy change, it is not yet clear whether this change will be significant in practice. The factors considered by the Minister of Health (the "Minister") in deciding whether or not to authorize the Director appointed under the IHFA to call for applications are substantially the same as the factors under the prior request for proposal process, except that the amended provisions add that the Minister may consider any other matter relevant to the management of the health care system.

The amendments to the IHFA also introduce matters that the Director will take into consideration in deciding whether to grant a renewal of a licence. These matters include the licensee's past conduct with respect to compliance under the IHFA and any actions taken by the licensee in response to a compliance order (a term that is introduced through these amendments). In addition, the Director will not renew the licence unless the licensee has paid the prescribed fee and the Director may require the licensee or any person to provide whatever information the Director considers necessary to decide whether or not to grant renewal.

The amendments to the application and licensing process in the IHFA made by Bill 138 are particularly interesting given that they may signal an intention on the part of the Ministry of Health to issue new licences.

Record-Keeping

Bill 138 creates new record-keeping rules in the IHFA. Pursuant to these rules, every licensee must maintain records as may be necessary to establish:

• whether they provided a service in respect of which a facility fee is charged or paid,
• whether a service provided is medically or therapeutically necessary, and
• that a service for which a claim was submitted is the service that was provided.

The amendments provide that the Minister may refuse to pay for a service if the claim for payment is not prepared in the prescribed manner.

New provisions also set out the specific circumstances in which the Minister may refuse to pay for services, pay reduced amounts, pay for services other than those described in a claim or require reimbursement for amounts paid; such as, where all or part of the service was not in fact delivered, where there is an absence of the required records, or where the Minister is of the view that the nature of the service is misrepresented, even if inadvertently, or the service was not provided in accordance with generally accepted standards.

Compliance Orders

The amendments enable the Director and prescribed persons to make compliance orders where a licensee has not complied with the IHFA, or if the Director or prescribed person is of the opinion that issuing a compliance order is necessary to protect health and safety.

Authority to make a compliance order or to revoke or suspend a licence under the IHFA may be exercised whether or not the licensee took all reasonable steps to prevent the non-compliance.

Liability and Increased Fines

The amendments to the IHFA under Bill 138 broaden the circumstances in which the Director may revoke or suspend a licence, by being authorized to do so not only where a licensee or an employee of a licensee is in contravention of the IHFA (or any other Act or regulation of Ontario or Canada), but also where any regulated health professional who is affiliated with the independent health facility is in contravention of it.

In addition, the maximum fines for individuals and corporations for non-compliance with certain provisions of the IHFA, including with requests for information or compliance orders, are increased by at least double pursuant to the amendments under Bill 138, as shown in the chart below:

Impending Repeal of the IHFA

Notably, despite the amendments to the IHFA enacted by Bill 138, the IHFA is currently pending repeal. Bill 160, the Strengthening Quality and Accountability for Patients Act, 2017 ("Bill 160") received Royal Assent on December 12, 2017. If proclaimed, it will enact the Oversight of Health Facilities and Devices Act (the "OHFDA"), a new regime for community health facilities and energy applying and detecting medical devices. Existing independent health facility licences would transition to the OHFDA. Licences for independent health facilities would be replaced with community health facility licences. The IHFA would be repealed.⁵

Amendments to the Health Insurance Act

Schedule 15 of Bill 138 enacts amendments to the HIA. Among other things, the amendments:

• codify that an insured person must present their health card upon the request of the hospital, physician, practitioner or health facility from which or whom the person receives insured services;
• create new rules requiring that every physician, practitioner, health facility, hospital and independent health facility give the General Manager under the HIA records or other information, including personal information, that the General Manager may require;
• establish new record-keeping rules; and
• similar to the amendments enacted to the IHFA by Bill 138, provide that the General Manager will refuse to pay for an insured service if the claim is not prepared in the required manner.

Schedule 15 of Bill 138 was amended by the Standing Committee between the second and third reading. The original version of Bill 138 introduced new rules requiring that in order for physicians to submit claims for payment to OHIP, or receive payments from OHIP pursuant to an arrangement under OHIP, they must have been granted "billing privileges" by the General Manager. The term "billing privileges", which was introduced in the original version of Bill 138, was removed in the final version. Instead, the current provisions refer to the granting of a "billing number". Subject to any regulation, the General Manager will grant a billing number to a physician, practitioner or health facility. The amendments expand the existing rules applicable to billing numbers.

Publishing Billing Information

Bill 138 establishes a new power through which the General Manager may publish information, including personal information, other than personal health information, that relates to any payments under the HIA to a physician, practitioner or health facility.

When the original version of Bill 138 was released, comments were made regarding the adverse impact this provision could have and suggested that it would be appropriate to have contextual information accompany the release of physician billing information. While the final version of Bill 138 carves out certain information which cannot be published by the General Manager; the carve out only addresses information received by the General Manager in connection with a hearing requested to require reimbursement from physicians to the Ontario Health Insurance Plan, and does not appear to address the concerns with the new power established.

Physician Payment Review Process

Bill 138 repeals the Physician Payment Review Board. While the original version of Bill 138 proposed the removal of the Physician Payment Review Process in Schedule 1 of Bill 138 altogether, the final version enacts a new Schedule 1, giving the responsibilities of the Physician Payment Review Board to the Health Services Appeal and Review Board.

Schedule 1 of the HIA enacted by Bill 138 also increases the period of review for which the payments made to a physician may be reimbursed for, from 12 months to 24 months.

The amendments also repeal provisions of the HIA creating the Joint Committee on the Schedule of Benefits, the Physician Services Payment Committee, and the Medical Eligibility Committee with transitional provisions for the Medical Eligibility Committee.

Footnotes

[1] Bill 138 can be found on the Ontario Legislative Assembly website.

[2] See our bulletin: Introduction to the Health Sector Impacts of Bill 138

[3] See our bulletin: Towards A More Integrated Health System? Amendments to PHIPA and Announcements About Digital and Virtual Health Care. In addition to amendments introduced by Bill 138, this bulletin also discussed Ontario's Digital First for Health Strategy.

[4] With three exceptions for provisions that will repeal certain of the new sections when proclaimed.

[5] See our bulletin on Bill 160 including the OHFDA: Ontario Introduces the Strengthening Quality and Accountability for Patients Act, 2017

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