Statutory Amendments from 1996 to 2002

I have been advised that physicians began to become concerned about the medical audit process in 1998. Their concerns, the responses made to those concerns, and my conclusions and recommendations are addressed in Part VI of this Report. Some of the changes giving rise to those concerns are referred to in the preceding description of medical audit practice in Ontario. A brief description of the relevant amendments and initiatives, in the period 1996-2002, follows:¹²⁷

126Ministry of Health and Long-Term Care, Submission (July 2004) at 14.

127 Ministry of Health and Long-Term Care, Submission (July 2004), at 5-6.

The Hon. Peter Cory, Medical Audit Practice in Ontario Part IV. Description of Medical Audit Practice in Ontario

Savings and Restructuring Act, 1996 (“SRA 1996”): The omnibus SRA 1996 included a number of amendments to the HIA that affected the medical audit process, including:

(1) providing for “direct recovery” provisions, which authorize OHIP to recover payments from a physician without hearing;

(2) establishing an “application fee,” which really amounted to a deposit towards any repayment to OHIP, payable if the physician sought review of a direct recovery by the MRC;

(3) providing for audits by a single member of the MRC (rather than a panel of three), either at the request of the physician or the General Manager of OHIP;

(4) providing that interest accrues on any repayment resulting from an MRC audit, from a date to be prescribed by regulation;

(5) requiring that the physician pay an additional amount towards the costs of an MRC audit, calculated in a manner to be prescribed by regulation;

(6) authorizing the General Manager to publish information about the results of a review by a full panel of the MRC;

(7) authorizing the General Manager to suspend payments to a physician who refuses to co-operate with an MRC audit; and

(8) authorizing the General Manager to require a physician to submit his or her accounts directly to OHIP in circumstances where they would have billed the patient, so as to facilitate collection of a debt by set-off against future payments.

Regulation 475/98 implemented provisions of the 1996 amendments by prescribing:

(1) the amount of the “application fee” payable by a physician requesting an MRC audit;

(2) the method for calculating interest, specifying that interest accrues from the end of the period for which the physician’s services were being audited;

(3) the method for calculating the costs a physician is required to pay, being the actual costs incurred by the Ministry and the MRC to conduct the audit.

Regulations 149/00 and 150/00, adopted following objections made by the OMA, ameliorated this onerous costs provision by:

The Hon. Peter Cory, Medical Audit Practice in Ontario Part IV. Description of Medical Audit Practice in Ontario

(1) excluding the costs of the Ministry and the MRC inspection costs;

(2) basing the calculation on the number of days MRC members worked on the case;

(3) reducing the calculation in cases where the physician had requested MRC review by the ratio of any reduction in the repayment that had been claimed by OHIP;

(4) capping the cost contribution amount at 35% of the repayment amount;

(5) excluding costs for the period in which the MRC was considering and agreeing to a successful settlement offer from the physician; and

(6) specifying circumstances in which the General Manager could reduce the cost contribution amount, on the recommendation of the MRC.

In November 2001, a Joint Committee of the Ministry and the OMA, which had been established to review the MRC process recommended establishment of:

(1) the OHIP Payment Review Program to provide physicians with an opportunity to resolve apparent claims irregularities prior to a referral to the MRC, and

(2) the Education and Prevention Committee, to assist physicians to comply with billing requirements.

Appendix D to the 2003 Memorandum of Agreement between the Ministry and the OMA identified eight “MRC Initiatives,” which have now been implemented, including:

(1) an expert review of the statistical methods used by the OHIP Payment Review Program;

(2) amendments to reduce the “application fee” (deposit), (implemented in June 2003 by Regulation 256/03);

(3) development of criteria as to when a security deposit can make a security deposit as an alternative to the Ministry setting off a portion of the physician’s OHIP payments towards the debt claimed by OHIP;

(4) further revisions to the method for calculating the costs of an MRC review, excluding from the calculation any time spent by MRC members prior to an actual meeting with the physician and up to two days of time meeting with the physician (implemented in February 2004 by Regulation 5/04).

The Hon. Peter Cory, Medical Audit Practice in Ontario Part IV. Description of Medical Audit Practice in Ontario

Pursuant to the Government Efficiency Act, 2002,¹²⁸ the legislature amended the Ministry of Health Appeal and Review Act to exclude from the HSARB any inquiry or decision concerning the constitutional validity of a provision of an Act or a regulation. The amendment thus removed from the HSARB (and the MRC) jurisdiction to consider any challenge to the legislation pursuant to the Charter of Rights and Freedoms.¹²⁹

Despite the progress in addressing some of the sources of physicians’ concerns with the medical audit process, significant issues remained. Physician confidence in the fairness of the audit system had been eroded, leading to Government’s decision in 2004 to establish this study and suspend the MRC audit process.