Private Surgical Facilities and the Health Care Protection Act (now known as the Health Facilities Act)
This is the second in a series of communiqués designed to provide a deeper understanding of Alberta’s Bill 30: Health Statutes Amendment Act, 2020 (the “Bill”), which was introduced in the legislature on July 6, 2020, and came into force (with some exceptions) on July 29, 2020. Part 1 in this series addresses physician billings and compensation disclosure under the Alberta Health Care Insurance Act.
Alberta’s Health Care Protection Act, now known as the Health Facilities Act
Recent amendments to this piece of legislation are likely of particular interest to health system stakeholders such as those involved in the assessment or approval of non-hospital surgical facilities (“NHSFs”), or providers of surgical services. Recent media reports about a proposed new $200 million orthopedic NHSF in Edmonton have raised the profile of this issue beyond system stakeholders, however, and there has been much commentary on related aspects of the Bill. This is one potentially motivating factor to understand whether and to what extent Bill 30 has changed the approval process for NHSFs.
Previously called the Health Care Protection Act (the “HCPA”), the Bill renames this act the Health Facilities Act (the “Act”). The Act continues to set out much of the legislative framework for the approval of NHSFs in Alberta. It works in conjunction with other legislation, in particular the Health Professions Act and the Regional Health Authorities Act (“RHAA”). The Act governs to some extent all surgical services provided by physicians and insured surgical services provided by dentists (i.e. oral maxillofacial surgical services covered as insured services under the Alberta Health Care Insurance Act). As the Bill did not make any changes respecting the provision of dental surgical services, approval of the facilities in which they are provided, or any significant changes respecting uninsured surgical services provided by physicians, the remainder of this Communiqué will focus only on insured surgical services provided by physicians.
While privately-delivered insured surgical services are provided by physicians in both hospitals and NHSFs, the focus of this Communiqué is insured services provided at NHSFs which are privately owned and operated. However, as with surgical services provided in-hospital, insured surgical services provided in an NHSF are still paid for with public funds, and physician services still compensated through a publicly administered plan.
For context, part of the United Conservative Party (“UCP”) platform was to reduce surgical wait times while maintaining a universally accessible, publicly funded health care system. It spoke to using elements of a successful Saskatchewan surgical initiative, and noted that one of the key reasons it was successful was that it invited specialized private day surgical clinics to bid on providing government insured surgeries. Given these UCP platform commitments, this is not an unexpected issue for this Government to focus on. The Government press release on Bill 30 described some of the changes as “streamlining the approval process for chartered surgical facilities to operate so they can provide more high-quality, publicly funded surgeries to help reduce surgical wait times without compromising patient safety or quality of care”.
The Act continues to set out specific requirements of physicians, NHSF operators, Alberta Health Services (“AHS”) and the Minister of Health (“Minister”) respecting the provision of insured surgical services. In all instances, the Act requires that an NHSF be accredited by the College of Physicians and Surgeons of Alberta (“CPSA”). The CPSA also determines which surgical services may safely be provided only in hospital, in an NHSF, or in a physician’s office.
The Act also continues to set out the process and criteria by which a proposal to provide such services through an NHSF must be evaluated. Of note is that the process itself remains largely unchanged from a legislative perspective. It begins in part with Alberta Health and AHS planning for the provision of health services in the province (or a particular region). AHS planning is based in part on its mandate to assess health needs and ensure that reasonable access is provided to quality health services.
The process specific to the assessment of a particular proposed NHSF agreement begins with an AHS analysis of one or more proposals to provide insured surgical services. While the Act does not explicitly direct AHS to assess a proposal in accordance with the criteria, practically an assessment should take these factors into account. If this results in a proposed agreement between AHS and an operator, the proposed agreement must then be forwarded to the Minister for his consideration. The Minister may refuse to approve a proposed agreement, or may approve it subject to any terms or conditions the Minister considers appropriate.
If the fundamental process has not changed, then what has? Other than the name of the Act, the changes address:
- a new explicit duty of the Minister or designate to assess a proposed agreement;
- Ministerial process in considering mandated criteria set out in the Act;
- the criteria which must be considered prior to a decision by the Minister to approve a proposed agreement; and
- the designation of an NHSF “in writing” rather than “by order” (note: NHSFs providing in-patient uninsured surgical services will still be designated by order).
A number of amendments substitute the new term “chartered surgical facility” for “designated surgical facility” (which has now been repealed). The term “approved surgical facility” has also been repealed. However, these changes have no substantive effect.
2. Explicit duty on Minister or designate to assess a proposed agreement
New wording provides for an explicit duty on the Minister (or the Minister’s designate) to assess a proposed agreement with respect to certain factors. While principles of administrative fairness may have supported such a duty to assess a proposed agreement previously, this clarifies that such a duty exists.
The new explicit authority that either the “Minister or a person designated by the Minister” shall assess the proposed agreement with respect to specified criteria is interesting. Previously, there was nothing in the HCPA or other legislation that would have prevented another person (and in particular, AHS or staff in Alberta Health) from conducting an assessment and providing advice to the Minister with the results of the assessment as part of the process. In fact, it is easy to imagine that it would be difficult or impossible for a Minister to make a determination without such assessment and advice. However, if such clarification was required, this is now explicitly provided.
3. Two-step Ministerial process for considering criteria and authority to designate NHSF
Previously, section 8(3) of the HCPA set out a list of criteria and required the Minister to be satisfied that all had been met before the Minister had authority to approve a proposed agreement.
The amendments result in a two-step process. Step one is the required assessment of a proposed agreement by the Minister (or Minister’s designate) referred to above, considering specified criteria (“Step 1 Criteria”). The second step is a consideration by the Minister of a different list of criteria (“Step 2 Criteria”).
As before, the Minister may not approve a proposed agreement unless he is satisfied that the specified criteria (now the Step 2 Criteria) have been met. While the Minister is obligated to consider the assessment of Step 1 Criteria conducted during stage one of the process (whether conducted by the Minister or his designate), he does not have to be satisfied that the Step 1 Criteria have been addressed before approving a proposed agreement.
This results substantively in a shorter list of criteria which must be satisfied prior to approval of an agreement. This appears to be the most significant amendment of the Act to “streamline” the process, as fewer considerations are required to form the basis for approval.
4. Criteria which must be considered
The previous HCPA criteria which the Minister must have been satisfied with before approving an agreement may be summarized as follows:
(a) the proposal is consistent with the principles of the Canada Health Act;
(b) there is a need in the geographical area, which is likely to be ongoing, for the surgical services being proposed;
(c) the proposal would not have an adverse impact on the publicly funded and publicly administered health system in Alberta;
(d) there is an expected public benefit in providing the proposed services considering factors including access to services; quality of services; flexibility; efficient use of existing capacity; and cost effectiveness and other economic considerations;
(e) AHS has an acceptable business plan for payment of a facility fee to be provided (note: this is a fee for facility services, as distinct from payment to cover physician services provided);
(f) the proposed agreement includes performance expectations and measures for the surgical and facility services; and
(g) the proposed agreement contains provisions showing how AHS would monitor physician compliance with their ethical and professional obligations as they relate to conflict of interest and other ethical issues.
Under the new Act, the Step 1 Criteria (which must be used to assess a proposal) are:
- access to insured surgical services in Alberta;
- quality of care;
- cost effectiveness and other economic considerations in Alberta; and
- any other factors the Minister considers appropriate.
The Step 2 Criteria contain some of the previous provisions. These are subsections (a), (f) and (g) of the former section 8(3) of the HCPA, paraphrased and listed above:
- consistent with Canada Health Act principles;
- performance expectations and measures for surgical and facility services included; and
- physician compliance re: conflict of interest and other ethical considerations included.
As a result, the above three criteria are the only Step 2 Criteria which must be met to support an approval of a proposed agreement by the Minister.
Removed from the consideration are former subsections (b), (c), two of the five factors in (d), and (e).
5. Designation of NHSF “in writing” rather than “by order”
Another procedural change may come about as a result of amendments that now simply require the Minister to designate or withdraw the designation of any approved NHSF “in writing”. Previously under the HCPA, such designations or withdrawals were carried out “by order”.
While the amendments provide for a more informal mechanism to designate an NHSF (only to be done if the Minister approves an agreement and is satisfied that the facility is or will be accredited for the services before they are provided), this does not eliminate the possible use of Ministerial orders to provide such designation.
Regardless of the form used, this amendment does not eliminate the practical need to draft and set out in writing the details of the designation, including a description of the insured surgical services that the facility is authorized to provide, and any terms and conditions the Minister considers appropriate to add. Nor does it remove the requirements on the Minister and AHS to publish specific information relevant to such designations and agreements.
Next in the Series on Bill 30
For additional information on Bill 30, stay tuned for part three in this series of Communiques, which will discuss amendments to Alberta’s Health Professions Act and Hospitals Act.
 Note that some minor surgical procedures may be carried out in physician offices.
 As set out in section 5 of the Regional Health Authorities Act, RSA 2000, c. R-10.
 Set out in section 8(1.1) of the Act.
 Found in the amended section 8(3) of the Act.
 R.S.C., 1985, c.C-6
 The first three criteria come from the former list (previously found in section 8(3)(d) of the HCPA).
 R.S.C., 1985, c.C-6
 I.e. (b) current and likely ongoing need; (c) no adverse impact on publicly funded and publicly administered health system in Alberta; (d) expected public benefit in providing the services under the proposed agreement; (e) AHS has an acceptable business plan for payment of a facility fee.