British Columbia’s Status Update to the Reimbursement Action Plan

Pursuant to section 15 (2) of the Canada Health Act, which states "The Governor in Council may, by order, repeal or amend any order made under subsection (1) where the Governor in Council is of the opinion that the repeal or amendment is warranted in the circumstances," we submit the 2020 status update to British Columbia's Extra Billing Elimination Action Plan.

We believe that the status update below demonstrates BC's robust commitment to upholding the principles of the Canada Health Act under challenging circumstances, and we ask that you take steps under the authority of 15 (2) to reimburse BC for all extra-billing penalties levied to date, including any penalty that may arise from the filing related to practices in effect in 2017/18.

Status Update: Implementation of BC's Extra Billing Elimination Action Plan - January 2020

Background

In October 2018, BC brought into force the remaining provisions of the 2003 Bill 92 to address the province's ability to respond to extra billing and to bring BC into compliance with the Canada Health Act (CHA).

The keychanges to the Medicare Protection Act (MPA) include the following:

• Offence provisions for practitioners and/or clinics who contravene extra billing; fines of up to $10,000 for a first offence and up to $20,000 for a second or subsequent offence;
• Ability for the Medical Services Commission (MSC) to cancel the enrolment of a practitioner for "cause";
• A beneficiary (or person who pays for service) is entitled to a refund for an amount that is paid contrary to the extra billing provisions contained in the MPA;
• The MSC may pay a beneficiary (or the person who paid for an insured service) in exchange for assigning the claim arising due to extra billing, and pursue the debt against the person who improperlycharged for the service;
• General limits on extra billing by enrolled practitioners have been clarified; and
• An increase in the scope of the limits on extra billing by non-enrolled medical practitioners.

Impact of Litigation

The following timeline covers the cumulative impact of Cambie Surgeries Corporate vs. British Columbia (Attorney General) on the implementation of Bill 92.

• October 2018, enforceability of the Bill 92 provisions waschallenged in Court in Cambie Surgeries Corporate v. British Columbia (Attorney General).
• November 23, 2018, the BC Supreme Court issued an injunction prohibiting the enforcement of the extra billing provisions (S. 17, 18, and 45 of MPA) until June 1, 2019 or further order of the Court.
• June 2019, the injunction ended.
• July 2019, Cambie brought an application for an injunction to prevent the Province from enforcing extra billing provisions in relation to surgeries at private medical clinics. This new application was heard in mid-August 2019.
• September 2019, there was an agreement regarding the extra billing injunction application; the MSC cannot refund patients in relation to private surgeries, and then seek recovery of the monies from the private clinics. The injunction also prevents the use of the offence provisions contained in the MPA.
• October 2019, both parties entered into a Consent Order until the Cambie trial decision is issued. The Consent Order provided certainty that the Ministry of Health can audit these facilities, but cannot reimburse patients, seek recovery of extra-billing amounts, or enforce the offence provisions of the MPA.

BC recognizes the significance of this litigation and the limits it has placed on BC's ability to ensure compliance of its health practitioners with the MPA and the principles of the CHA. BC has committed and will continue to commit significant resources to the successful conclusion of this trial and will continue to exercise its legislative authority to ensure compliance with the MPA within the constraints of the respective court orders. The Ministry will focus ongoing enforcement across all potential operations at risk of extra-billing, including previously audited clinics if there are indications that practices have not changed.

Section 18.1 of the MPA (pertaining to diagnostic services) is currently scheduled to come into force on March 31, 2020. Given the stage of the Cambie Trial, the Ministry of Health, in conjunction with the office of the BC Attorney General, is assessing the implications of the implementation of this section.

Physician/Clinic Notification

Sections of the BC government website aimed at medical practitioners have been updated and placed on the main landing page to raise awareness amongst physician about what is being communicated to patients regarding appropriate and inappropriate billing. https://www2.gov.bc.ca/gov/content/health/practitioner-professional-resources/msp/physicians

Public Awareness

The Ministry has provided patients with a description of benefits and a link to the description of extra billing at the following webpage: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents

The Ministry has a description of extra-billing along with the form to submit a request for investigation for patients who believe they have been extra billed: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/benefits/additional-fees-and-charges

Links to the description of extra billing and the form are also available with the description of Services covered by the Medical Services Plan (MSP): https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/benefits/services-covered-by-msp, and Services not covered by MSP: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/benefits/services-not-covered-by-msp

Further to these webpages targeted at patients, the Ministry has also provided physicians with a link to the description of extra billing so they may better understand patient expectations for appropriate billing: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/benefits/additional-fees-and-charges

British Columbians have the right to expect that they will not be asked by physicians to pay out of pocket for insured services. The Ministry believes that its communication strategy has been effective at reducing those situations and remains committed to working toward their elimination. The Ministry will monitor ongoing patient inquiries and consider additional formats to make information available to the public, as required.

Health Authority Contracts

Health Authorities (HAs) in BC have entered into over $65 million in multi-year contracts with private clinics to provide beneficiary services and increase access to surgical services in an effort to reduce extra billing and user charges. Currently, HAs have issued 12 contracts with 8 private clinics for surgical services.

The Ministry of Health issued a letter on September 13, 2018 notifying all HAs of expectations about contracting between HAs and private clinics for the provision of medical services. This included a requirement for all HAs to amend their current surgical services contracts with private clinics to include termination provisions in the event of extra billing. As a requirement of the amended contracts, medical practitioners and clinics have been required to sign compliance statements. Physicians can only provide contracted surgical services once the compliance letter is signed. This letter of expectation was revised following the Court Order, as was the compliance statement – which is now referred to as a "notice to physician."

The compliance agreement requires acknowledgement by physicians of the termination provisions in the contract between the HA and their clinic pertaining to extra-billing. These provisions apply to the physician's services under contract (which are by definition insured services) as well as services undertaken by the physician in this clinic outside of the contract (the latter would be insured services provided at the clinic).

Currently the regional HAs monitor the surgical contracts for compliance with all provisions. Since implementation in September 2018, the HAs have not terminated any contracts with private surgical clinics over performance or compliance issues. The Ministry is confident that the agreements are being followed by the physicians and HAs, and once the injunction is lifted, the Ministry will undertake proactive measures to confirm results. Overall, the Ministry views this current productive dynamic between HAs and clinics (formerly providing private services) as demonstrative of the value of contractual arrangement to bring private surgical services back into the public system. This approach simultaneously eliminates extra-billing practices and enhances the capacity of the public health system to provide needed patient care.

MSC–Compliance and Monitoring

The Ministry works closely with the MSC to ensure that operational processes designed to protect patients from extra billing are balanced with the constraints imposed by the Court Order. The Ministry processes patient complaints, investigates allegations of extra billing, determines whether extra billing has taken place, and seeks to resolve complaints through communication and education with the physician.

Even with the current injunction regarding reimbursement of inappropriate patient pay fees, the MSC has investigated 12 patient-led complaints about extra billing. As of February 24, 2020, three were resolved without investigation. Two were resolved through correspondence with the practitioner's office, and seven are in process and should be resolved before the end of the fiscal year. The Ministry works closely with the MSC, and supporting medical experts, to investigate these complaints in a timely fashion and ensure that both patients and practitioners receive clear expectations for appropriate action.

Once a judgement has been rendered in the Cambie trial, the Ministry will work with the MSC and the Attorney General to determine if operational processes need to be modified to align with the amendments to the MPAbrought into force by Bill 92 and currently enjoined by Court Order. Such modification could include referring cases to the Ministry's Audit and Investigations Branch (AIB) and the Special Investigations Unit (SIU). In the interim, the Ministry continues to communicate directly with practitioners to resolve patient concerns.

BC Surgical and Diagnostic Imaging Strategy

In March 2018, the BC Surgical and Diagnostic Imaging Strategy (strategy) was announced. The strategy aims to reduce wait times and increase access to publicly funded surgeries and diagnostic imaging procedures. The strategy received $100 million in targeted and ongoing funding in 2018/19. In 2019/20, the ongoing funding grew to $125 million.

Key to achieving the mandate above is maximizing surgical capacity throughout the province. In BC, as in other provinces, this includes private surgical centres. Contracting with these centers increases publicly funded access for patients whose surgical day procedures can be done safely and efficiently in the community, leaving hospital capacity for more complex surgeries and procedures. By negotiating contracts with private clinics to provide beneficiary services instead of extra billing services, BC has acted to prevent future extra billing. With these contracts, the HAs have moved from short term to multi-year terms of service (while maintaining termination clauses should extra billing occur). The stability of these contract arrangements will keep former private capacity in the public system in a sustainable manner.

In addition to these steps, BC is also increasing public system capacity within HAs. This includes opening new operating rooms and extending the operating hours for others in our hospitals. Through this strategy and its results, BC demonstrates its continued commitment to addressing patient extra billing, as defined under the CHA.

MRI Volumes

With respect to medical imaging, in 2018/19, BC conducted 233,369 MRI exams compared to 173,678 MRI exams in 2016/17 and 189,376 in 2017/18. This is a 34.4% increase since 2016/17. A target of 248,369 MRI exams was set for 2019/20. Since August 2017, MRI operating hours have increased by more than 1,400 per week to a weekly average of over 4000 hours. This achievement was made by:

• operating existing machines longer by adding evening, weekend and/or statutory holiday shifts;
• streamlining the MRI referral process using central intake models to eliminate duplicate referrals, reduce missed appointments; and
• improving appropriateness of exams and providing patients more options on where and when they can undergo an exam.

MRI Inventory

In 2017/18 11 MRI units regularly operated for more than 112 hours per week, of these only one unit was operating on a 24/7 rotation. By December 2019, 18 MRI units are regularly operating above 112 hours per week, of these, seven MRI units in growing urban areas are operating at a 24/7 staffing rotation.

BC expects to make further gains in improving access through new MRI capacity that has been brought online. Since December 2018, seven net-new units are operational in BC, including:

• A second new MRI unit at Jim Pattison Outpatient and Surgery Centre in Surrey;
• A second new MRI unit at Royal Jubilee Hospital in Victoria;
• A new MRI unit at East Kootenay Regional Hospital in Cranbrook;
• A new MRI unit at Vernon Jubilee Hospital in Vernon;
• A fixed MRI unit at Penticton Regional Hospital (previously served by a mobile unit); and
• Purchase of two MRI outpatient clinics in Fraser Health; Surrey MRI Outpatient Clinic and the Abbotsford MRI Outpatient Clinic.

These two outpatient clinics, (Surrey and Abbotsford), were previously operating privately. They are now regularly operating at 75 hours/ week and 99.5 hours/ week, respectively for a cumulative average of 174.5 hours/ week. These hours represent a direct reduction in the amount of private billing for diagnostic services in BC. As with surgical services, BC's approach to diagnostic services is redirecting previously private services to strengthen the public health care system and improve access.

At growing urban sites in Victoria and Surrey the new MRI units installed this past fiscal year are the latest technology. The new units are state-of-the-art 3 Tesla (3T) MRI units which can perform scans faster, with no reduction in image quality and allow for quicker patient turnaround times. These are the first 3T units within the province for adult populations. Three more net-new units are planned to be operationalized in the upcoming year.

Health Human Resources

The Ministry and HAs are working to ensure there are enough staff in key roles to support increased access. The Ministry and the HAs continue to work with Health Match BC to develop and implement a targeted, multi-faceted recruitment strategy to attract qualified internationally-trained anesthesiologists by taking the following steps:

• Since January 2019, 93 anesthesiologist and general practice-anesthesia positions have been filled, with 52 candidates working through the recruitment process (as of December 2019). This will help to ensure that anesthesia resources are secured and available for the longer term.
• The Ministry and the University of British Columbia Faculty of Medicine have worked to increase the number of entry-level residency positions in anesthesiology from 11 positions in 2018/19 to 14 in 2020/21. This will translate to 70 trainees across all years of training once steady state is reached.
• The Ministry is working collaboratively with the Ministry of Advanced Education, Skills, and Training, and HA stakeholders to ensure Anesthesia Assistant practice is optimized and aligned with the National Competency Framework in Anesthesia Assistance.

The Ministry, along with the Ministry of Advanced Education, Skills and Training, HAs and the BC Institute of Technology (BCIT), have also worked to increase specialty nursing seats from 389 to 1,000 in 2018/19.

Laboratory Services

Medically required laboratory services are publicly funded under the Laboratory Services Act (LSA). The Minister is responsible for all matters related to laboratory services including the facility approval process, governance, accountability and provision of benefits for all laboratory services in the province. The Agency for Pathology and Laboratory Medicine is now a program under the Provincial Health Services Authority (PHSA). The Agency's mandate is to provide laboratory system oversight and to ensure that clinical laboratory services are sustainable, quality driven, innovative, and support British Columbia's residents and clinicians with access to laboratory services. Since April 1, 2019 PHSA accepted accountability for operational functions assigned by the Ministry to support the LSA.

Since 2005, the Ministry has contracted with MAXIMUS Canada to deliver some of the administrative operations of MSP, PharmaCare and laboratory services (including responding to public inquiries, registering clients, and processing medical and pharmaceutical claims from health professionals). MAXIMUS Canada administers the province's medical and drug insurance plans under the Health Insurance BC program. Policy and decision-making functions remain with the Ministry.

Audits of Private Clinics

The Ministry has completed six audits of private surgical clinics. The results of these audits were shared with Health Canada in accordance with the agreement signed by our respective ministers in 2017. Further audits were put on hold in order to ensure the Ministry complies with the court order but are set to resume in early 2020.

The Ministry has established an audit unit that is responsible for the ongoing audit of existing private surgical centers, and in the 2020/21 fiscal year is aiming to complete a further three audits bringing the total completed and underway to ten, including Cambie. The clinics are selected on a risk-based approach, considering factors such as complaints made by patients, types of services offered, number of physicians providing services and evidence from clinics' websites that they extra bill.

The purpose of the audits is two-fold:

1. To monitor and assess compliance with the MPA, and
2. To help determine an accurate estimate of the extent of extra billing.

The Ministry of Health will provide the final audit reports for individual clinics and/or providers to Health Canada subject to any redactions required to comply with the Freedom of Information and Personal Privacy Act (FOIPPA). The Ministry of Health will also post summarized versions which will be available to the public via online posting. The Ministry will be adding communication resources for this work and recruitment will be undertaken in the short term. Their first order of priority will be to make sure this is completed and posted in a timely manner.

Subject to clarification from the Court, the Ministry is committed to full transparency and will continue to work with Health Canada in reviewing audit findings as the work is completed. Going forward, it is suggested that the monthly conference calls to discuss audit findings are re-established.

Reporting Requirements

BC submitted a complete and accurate 2018/2019 extra billing and usercharges financial statement to Health Canada as per the reporting requirements set out in theCHA and Regulations. BC reported a total of $16,753,833 in extra-billing charges occurred in 2017/18 according to the agreed-on reporting methodology.

Conclusion

In summary, BC is continuing to monitor and assess the impact of the implementation of Bill 92 given the ongoing litigation and injunction. BC's Ministry will also continue work to determine whether furtherchanges to policy and/or legislation are warranted to address extra billing. BC's goal and actions demonstrate a strong commitment to strengthen the public health care system, eliminate extra-billing, and ensure full compliance with CHA. The specific steps and strategies to reach that goal will evolve to address changing circumstances, but BC's multi-pronged and robust approach backed by significant resources will stay constant. By moving forward with the above noted actions, BC believes it has taken the necessary steps to address extra billing within the province and is seeking reimbursement from Health Canada for all penalties levied to date, which total $48.8 million.

As noted above, we believe that the status update demonstrates BC's robust commitment to upholding the principles of the Canada Health Act under challenging circumstances, and we ask that you take steps under the authority of 15 (2) to reimburse BC for all extra-billing penalties levied to date, including any penalty that may arise from the filing related to practices in effect in 2017/18.

Statement of Attestation

I attest that the above information captures the full extent of the Ministry of Health's efforts to eliminate extra-billing and ensure full compliance with the CHA and its Regulations and applicable provincial/ territorial legislation.

February 28, 2020

Philip Twyford
Assistant Deputy Minister, Ministry of Health
British Columbia