Passing of Bill 138 Brings More Change to the Health Industry

December 19, 2019 | Kathryn M. Frelick, Karima Kanani, Kristen Vandenberg

Following its swift passage through the Ontario Legislature, Bill 138, Plan to Build Ontario Together Act, 2019 (“Bill 138”) passed Third Reading and received Royal Assent on December 10, 2019.

Bill 138 is far reaching and amends or enacts over 40 pieces of legislation with widespread impact across the health sector. Many provisions came into force on December 10, 2019 while others will be enacted through proclamation over time. Some key highlights of Bill 138 are set out below.

PHIPA – New Offence Provision and Regulation-Making Authority

In addition to the recent amendments which took effect on December 2, 2019, Bill 138 makes several significant amendments to the Personal Health Information Protection Act, 2004, S.O. 2004 (“PHIPA”) including the creation of a new offence. As part of an effort to modernize PHIPA which was enacted in 2004, and address issues such as the use of personal health information and de-identified information in research and new applications, it is now an offence for any non-prescribed persons or entities to use or attempt to use de-identified information to identify an individual.

To address the establishment of Ontario Health and Ontario Health Teams under the Connecting Care Act, 2019 S.O. 2019, new regulation-making authorities have been established under PHIPA:

  • prescribing the circumstances in which Ontario Health may collect, use and disclose Personal Health Information (“PHI”) and when PHI can be disclosed by a health information custodian or other person to Ontario Health
  • prescribing under what circumstances Ontario Health Teams may collect, use and disclose personal health information; what conditions apply to the collection, use and disclosure by Ontario Health Teams; and disclosures that may be made by a health information custodian or other person to an Ontario Health Team

These amendments are not yet in effect, and will come into force on a day to be proclaimed by the Lieutenant Governor in Council.

Procurement and Supply Chain Management Changes

Bill 138 creates a new Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019, (the “SCMA”), the stated purposes of which are to:

  • enhance supply chain management in respect of certain government, broader public sector and health sector entities (referred to as prescribed entities)
  • establish a framework for regulating supply chain management, including procurement
  • leverage the buying power of these entities
  • set out roles and responsibilities for supply chain management (including procurement)

Health sector entities include (i) prescribed health service providers that receive government funding to provide or support the provision of health services, and (ii) shared service organizations operated by or on behalf of health service providers that purchase goods or services for those providers.

Supply chain management is defined broadly and includes a spectrum of activities related to the procurement of goods and services.

All prescribed entities must comply with the SCMA and any regulations governing how supply chain management is carried out, including with respect to the implementation of performance standards and practices and reporting. To the extent there are any inconsistencies between the regulations and Management Board of Cabinet Directives (including the Broader Public Sector Procurement Directive), the regulations will prevail.

The SCMA permits the Lieutenant Governor in Council to establish “supply chain management entities” by regulation, which will allow the appointment of supply chain management entities to procure goods and services on behalf of government bodies, broader public sector entities, and health sector entities.

The SCMA is not yet in effect, and will come into force on a day to be proclaimed by the Lieutenant Governor in Council.

Changes to OHIP Oversight

Bill 138 makes significant changes to the Health Insurance Act, R.S.O. 1990 (“HIA”) in respect of physician billing, payment and reimbursement intended to provide greater oversight of OHIP and increased transparency. Key amendments include:

  • To address concerns about lack of transparency in billing practices, the General Manager is authorized to publish information that relates to any payments under the HIA to a physician, practitioner or health facility. The HIA is clear, however, that this does not authorize the General Manager or the Minister of Health (the “Minister”) to publish information concerning an opinion the General Manager has formed in respect of alleged improper billing.
  • A new requirement that health cards be presented upon the request of a hospital, physician, practitioner or health facility from which a person receives services. In addition, the General Manager of OHIP may now charge a fee for replacement health cards.
  • Authority for the General Manager to require production from physicians or practitioners of records or other information required for prescribed purposes has been expanded to include health facilities, hospitals, independent health facilities and any other prescribed organization.
  • “Refusal to pay” provisions have been amended in respect of physicians. In addition to allowing the General Manager to refuse to pay a claim for an insured service submitted by a physician or pay a reduced amount where prescribed circumstances are met, the General Manager may now pay for the service the General Manager considers to have been provided and not the service described in the claim, or request a hearing by the Appeal Board. In addition, the General Manager may refuse to pay where the General Manager feels the service has not been rendered in accordance with the conditions and limitations set out in the HIA and regulations.
  • The General Manager may require a person to reimburse OHIP for an amount paid for an insured service if the General Manager determines that the person was not an insured person.

The majority of the amendments to the HIA came into force on December 10, 2019.

New Rules for Independent Health Facilities

Substantial changes have also been made to the Independent Health Facilities Act, R.S.O. 1990 (“IHFA”) to increase oversight, most of which came into force on December 10th. These include:

  • New rules for applications to establish and operate Independent Health Facilities (“IHFs”).  Rather than being triggered by a “request for proposal” process, the Minister may now issue a “call for applications”.
  • New rules have been established regarding the issuing of licences and applications for licences and for the transfer, revocation and suspension of licences; in some instances broadening the authority of the Director (under the IHFA) or the Minister.
  • New record-keeping requirements have been added to the IHFA.
  • Circumstances have been set out where the Minister may refuse to pay for a service, pay a reduced amount for the services, pay for the service the Minister considers to have been provided and not the service described in the claim that was submitted, or require reimbursement of the amount paid for the services in prescribed circumstances.
  • The Director may issue a compliance order under the IHFA to a licensee or potential licensee of an IHF to ensure compliance with the IHFA.

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