The Physician Audit Board

Physicians and their associations have made recommendations concerning the composition and procedures of the Physician Audit Board and its Hearing Panels. The two

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

recommendations that are most urgent relate to the need for full and fair hearings, which is discussed later in this Report, and the importance of peer representation on Hearing Panels.

a. Peer representation on the Physician Audit Board, the Hearing Panel, and the roster of Inspectors

Physicians complained that their fee claims ought to be investigated and assessed by true peers, who understand both the fee claim and the nature of the practice that provides the context for consideration of the claim. In particular they submitted that the Inspector and one member of the Audit Hearing Panel should be from the same practice field and setting as the physician or as close to it as possible. To achieve this objective, it would be necessary to appoint to the Physician Audit Board and the roster of Inspectors a representative group of physicians.

In its written submission, OHIP argued that peer representation of this specific sort was not necessary. OHIP referred to court decisions that had described the MRC process as constituting peer review, independent of government. OHIP submitted that all physicians learn how to keep records in a similar fashion and are capable of interpreting a record and comparing it to the requirements of the Schedule of Benefits. In OHIP’s view, it is sufficient, in cases where medical necessity or professional standards are at issue, that the Hearing Panel obtain an opinion from a physician of the same specialty as the physician under review.²³³

At the hearings, however, representatives of OHIP agreed that an Inspector who reviews the physician’s records should be a peer, and that the Hearing Panel reviewing the matter should, if possible, have at least one peer, or, if that is not possible, should hear from a peer as an expert witness.²³⁴

Conclusion:

All parties now agree, and I conclude, that the membership of the Physician Audit Board should reflect the various disciplines of the profession, that the Inspector assigned to investigate

233 Ministry of Health and Long-Term Care, Submission (July 2004), at 25 (Appendix 1, item 6).

234 Transcript, November 2, 2004, at 140 (lines 14-16) and 178 (line 19) to 179 (line 1).

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

and report should be from the same practice field and setting as the physician or as close to it as possible, and that one member of the Audit Hearing Panel should also meet that criterion.

RECOMMENDATIONS:

(19) The membership of the Physician Audit Board should reflect the various disciplines of the medical profession.

(20) The Inspector assigned to investigate and report on a physician’s fee claims should be a true peer of the physician, that is, from the same practice field and setting as the physician or as close to it as possible.

(21) One member of the Audit Hearing Panel should be a true peer of the physician who is before the Panel.

b. Composition, Qualifications, and Appointment Conclusions:

On the basis of submissions made to me, and my assessment of the numbers of members necessary to enable the Physician Audit Board to meet its responsibilities, I conclude that the Board should be made up of thirty physicians and ten members of the public, each appointed for a three to five year term, and eligible for reappointment to one additional term. Appointments should be staggered to provide continuity.

To ensure the requisite peer review, the physicians should be selected from as wide a range of practice settings and specialties as possible. Only physicians who are engaged in active practice should be eligible for appointment.

Both the OMA and the College have a significant interest in ensuring that the hearing process is fair. The OMA represents physicians, and the College regulates them in the public interest. Each of them has means of identifying candidates with appropriate expertise and experience. They should both work to ensure that the members of the Hearing Panels are independent, knowledgeable, and fair-minded. In consultation with the Chair of the Physician Audit Board, they should each nominate fifteen of the thirty practicing physicians who will comprise the thirty physician members of the Physician Audit Board. It may be necessary to establish a joint nominating committee in order to ensure the necessary breadth of experience

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

among the physician members of the Board. Breadth of representation on the Board is necessary in order that one member of each Hearing Panel have experience and expertise that is as close as possible to that of the physician under review.

All physician nominees must be in good standing with the College and have no conflict of interest in relation to issues within the jurisdiction of the Board. Accordingly, the College and OHIP should review and report on their eligibility for appointment.

Physician members of the Board will be expected to undertake difficult and important work that will take them away from their practice. Accordingly, they must be reasonably compensated, on a per diem basis. It is, of course, understood that there is an element of public service in an appointment such as this, but it should not require too great a sacrifice. I am advised that physicians sitting on hearing panels for the College are paid a per diem stipend of $750, but that former members of the MRC received a per diem stipend of $347 in accordance with rates for government appointments. This discrepancy is too great. It is important that the significance and complexity of the service performed by Board members be recognized and valued. I am advised that members of the Transitional Physician Audit Board are paid a per diem stipend of

$550. Other jurisdictions have also recognized the importance of the work of medical audit board members by providing higher rates of compensation. I recommend that members of the Physician Audit Board be paid a per diem stipend of at least $500. On this subject, see the table attached as Appendix 10, which sets out the rates of compensation paid by other jurisdictions to members of medical audit boards.

The ten public members should be appointed by the Ministry for a term of three to five years and be eligible for reappointment for a second term. The Ministry should consult with the Chair of the Physician Audit Board, the OMA and the College in identifying nominees who are qualified to contribute to the processes and deliberations of the Panel. In particular, members of other professions would bring a broad and helpful perspective to the deliberations, and lawyers might contribute their expertise in procedure and statutory interpretation. Well-qualified public members are required and they should be compensated at the same rate as physician members.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

The Chair of the Physician Audit Board should be selected from and by its members and should serve for a term of two years, renewable for two additional years. This selection procedure is significant and necessary to demonstrate to all parties the independence of the Board.

The larger number of physician members (thirty) will enable the Physician Audit Board to be broadly representative of the profession and help to ensure the goal of peer representation on each Hearing Panel. The larger number of both physician and public members will serve three additional purposes. It will permit Hearing Panels to be quickly constituted as they are needed. It will enable the Board as a whole to identify issues of general concern that should be referred to appropriate bodies for consideration. Finally, it will ensure that there are sufficient members available to assist, as needed, in the education of physicians with regard to good billing practices.

Since members will be paid on a per diem basis, the larger number of members on the Physician Audit Board should have little impact on the total cost of its operations.

RECOMMENDATIONS:

(22) The Physician Audit Board should be composed of thirty physicians and ten members of the public, each appointed for a three to five year term and eligible for reappointment to one additional term. Appointments should be staggered to ensure continuity and renewal.

(23) The OMA and the College, in consultation with the Chair of the Physicians Audit Board, should each nominate fifteen of the thirty physician members. It may be necessary to establish a joint nominating committee to ensure the necessary breadth of experience among physician members.

(24) Physician members should be selected from as wide a range of practice settings and specialties as possible.

(25) Only physicians who are engaged in active practice should be eligible for appointment.

(26) All physician nominees must be in good standing with the College and must have no conflict of interest in relation to issues within the jurisdiction of the Board. The College and OHIP should review and report on their eligibility for appointment.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

(27) Ten public members should be appointed by the Ministry.

The Ministry should consult with the OMA, the College, and the Chair of the Physician Audit Board in identifying qualified nominees.

(28) Members of the Board should be compensated at a per diem rate of at least $500.

(29) The Chair should be selected from and by the members of the Board and should serve for a term of two years, renewable for two additional years.

c. Orientation and instruction Conclusions:

All members of the Board should be instructed in their duties and responsibilities as members of the Physician Audit Board and as members of a Hearing Panel. They should understand billing requirements, investigation procedures, and the audit process. In particular, they should be instructed in the requirements of procedural fairness. They should be taught to always strive to maintain their impartiality; to conduct their hearings with fairness, patience and respect; and to deliver clear, concise, and reasoned decisions.

RECOMMENDATIONS:

(30) Members of the Physician Audit Board should be instructed in billing requirements, investigation procedures and the audit process. In particular, members should be instructed in the requirements of procedural fairness; maintaining impartiality; conducting hearings with fairness, patience and respect; and delivering clear, concise, and reasoned decisions.

d. Annual Report and Meetings Conclusion:

The full Physician Audit Board should meet at least once a year. It should prepare and approve an annual report on its work. The Board should review, annually or more often if required, issues of procedure or policy, consider any referrals to the Joint Committee on the Schedule of Benefits, and address any needs of Board members for training relevant to their responsibilities.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

RECOMMENDATION:

(31) The full Physician Audit Board should meet at least once a year. It should prepare and approve an annual report on its work. The Board should review, annually or more often as required, issues of procedure or policy, consider any referrals to the Joint Committee on the Schedule of Benefits, and address any needs of Board members for training relevant to their responsibilities.

e. Audit Hearing Panels

Pursuant to the HIA, either OHIP or the physician may ask that an audit be conducted by a one-member hearing panel. There was considerable concern as to whether a panel of one, sitting informally and thus without procedural requirements, could be fair and appear to be fair. In any event, since the decision of a one-member panel could be reconsidered by a three-member panel, there was little benefit in a one-member process. I was advised that one-member hearing panels are no longer used.

I received various proposals regarding the appropriate composition of Audit Hearing Panels, but there was broad consensus as to the desirability of having a public member, a peer physician, and some flexibility to proceed in the event that a member is not able to continue after a hearing has commenced.

Conclusions:

From the forty members of the Board, the Chair should select Audit Hearing Panels composed of three physicians and one public member. The Chair should designate the member who will serve as Chair of the Panel. It is important that the physician being audited can expect to be reviewed by his or her true peers. Accordingly, at least one of the physician members should practice in the same, or as close as reasonably possible to the same, specialized field and practice setting as the physician whose fee claims are to be reviewed. The provisions of the HIA authorizing an audit to be heard by a single-member panel and reconsidered by a three-member panel should be repealed.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

RECOMMENDATIONS:

(32) The Chair of the Physician Audit Board should select, from members of the Board, three physician members and one public member to sit as an Audit Hearing Panel.

(33) At least one of the physician members should practice in the same, or as close as reasonably possible to the same, specialized field and practice setting as the physician whose fee claims are to be reviewed.

(34) The Chair of the Physician Audit Board should designate a member of the Audit Hearing Panel to serve as Chair.

(35) The provisions of the HIA authorizing appointment of a one-member panel and reconsideration of that panel’s decision by a three-member panel should be repealed.

9. Inspectors

Some physicians complained vigorously about their treatment at the hands of Inspectors sent by the MRC to investigate their fee claims. They decried the Inspector’s cavalier behaviour, lack of familiarity with the physician’s field of practice, disrespect, rudeness, and an attitude reflecting a predetermination that the physician was guilty of improper billing. That is certainly not to say that all Inspectors acted in this manner, but it is unacceptable if any of them did.

It is important that Inspectors be carefully selected and trained and that there be sufficient Inspectors to undertake the work expeditiously. I heard from the College that a lack of Inspectors with appropriate qualifications has created delays in the audit process in the past.²³⁵

Conclusions:

Based on the submissions and my review of other jurisdictions, I conclude that Inspectors have an important role to play in the audit process. The role of an Inspector should be to investigate and report on the facts in relation to the audit, but also, as will be seen below, to make a determination as to whether the physician has a satisfactory explanation for disparities between his or her billing patterns and the norm among the physician’s peers.²³⁶

235 College of Physicians and Surgeons, The Medical Review Committee: An Overview (September 10, 2004), at slide 59.

236 See section 14 of Part VI of this Report, Recommendations 68-70.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

There should be twenty Inspectors, appointed by the Minister, on the joint recommendation of the Chair of the Physician Audit Board, the OMA and the College. The Inspectors must be independent and report only to the Chair of the Physician Audit Panel. They should be appointed for a term of three to five years, and be eligible for reappointment to one additional term. The appointments should be staggered to ensure continuity. The Inspectors should be engaged in active practice and should be selected to represent a broad range of practice specialties and settings.

Openings for Inspectors should be widely advertised to the profession. Candidates for appointment should be reviewed by OHIP and the College to ensure that they are in good standing and have no conflict of interest. In addition, care should be taken to appoint individuals whose disposition will enable them to conduct an inspection appropriately.

The Inspectors must be aware, by experience and training, of the record-keeping requirements for both clinical and billing purposes. They should be required to complete a course of instruction regarding their responsibilities in conducting an inspection and reporting to the Chair of the Board. In particular, they must be made aware of the obligation to treat the physicians they inspect with respect and courtesy and to listen to any explanations they may present with patience and careful attention. The Physician Audit Board should develop a Code of Conduct and procedures for Inspectors.

Inspectors should be remunerated at a per diem rate sufficient to attract able candidates and compensate them appropriately for the time they must take away from their practice.

The Chair of the Physician Audit Board should assign an Inspector to undertake a particular investigation. The Inspector should be in active practice in a specialty and practice setting that is the same or reasonably similar to that of the physician whose billings are being considered.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part VI. Physicians’ Concerns with the Medical Audit Process, Responses , Conclusions and Recommendations

RECOMMENDATIONS:

(36) The Minister should appoint twenty Inspectors, on the joint nomination of the Chair of the Physician Audit Board, the OMA and the College. Inspectors should be appointed for a term of three to five years and be eligible for reappointment to one additional term. Appointments should be staggered to ensure continuity.

(37) Inspectors will report only to the Chair of the Physician Audit Board.

(38) Inspectors should be physicians selected from as wide a range of practice specialties and settings as possible.

(39) Only physicians who are engaged in active practice should be eligible for appointment as Inspectors.

(40) Openings for Inspectors should be widely advertised to the profession.

(41) The College and OHIP should review all candidates for appointment as Inspectors to ensure that they are in good standing and have no conflict of interest in relation to billing issues.

(42) In addition, care should be taken to appoint individuals as Inspectors whose disposition will enable them to conduct an inspection appropriately.

(43) Inspectors should be required to complete a course of instruction regarding record-keeping requirements for both clinical and billing purposes, the conduct of an inspection, and reporting requirements. In particular, they must be made aware of their obligation to treat physicians who are being inspected with respect and

(43) Inspectors should be required to complete a course of instruction regarding record-keeping requirements for both clinical and billing purposes, the conduct of an inspection, and reporting requirements. In particular, they must be made aware of their obligation to treat physicians who are being inspected with respect and