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Medical - Independent Health Facilities Act (IHFA)

. Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health)

In Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health) (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from a decision of the HSARB that upheld decisions of the Minister of Health that required the appellant "to reimburse the Minister for payments totalling over $1.1 million for facility fees that Dixie billed to the Minister for radiology services".

The court considers the recently-repealed Independent Health Facilities Act (IHFA), and transition provisions where the IHFA still applied despite replacement by the Integrated Community Health Services Centres Act (ICHSA) - here in passages which set out steps taken in an 'investigative audit' by the Ministry of Health:
II. Legislative scheme

[5] The Decision under appeal relates to facility fees that Dixie billed to the Minister in the years 2016 to 2019 under the Independent Health Facilities Act, R.S.O. 1990, c. I.3 (the “IHFA” or “Act”). During that period, Dixie’s diagnostic imaging clinics were licenced as independent health facilities (“IHFs”) under s. 3(1) of the IHFA.

[6] On September 25, 2023, the IHFA was repealed and replaced by the Integrated Community Health Services Centres Act, 2023, S.O. 2023, c. 4, Sched. 1 (the “ICHSA”). The IHFA as it read immediately prior to its repeal continues to apply to any proceeding not finally determined on that date, including the facility fees at issue here: see ICHSA, s. 62(1).

[7] The IHFA set out the legislative regime governing the licensing, funding and quality of services provided by IHFs. The IHFA provides for the payment of facility fees by the Minister directly to IHFs for overhead costs associated with the provision of an “insured service”, being a medical service insured under the Health Insurance Act, R.S.O. 1990, c. H.6: see IHFA, s. 1(1). The facility fees that are eligible for payments to IHFs are listed in the Schedule of Facility Fees for Independent Health Facilities (the “Schedule” or “SOFF”), published on the website of the Ministry of Health (the “Ministry”).[1]

[8] The IHFA requires IHFs to promptly prepare and maintain records to support their facility fee claims, including whether a service provided is medically or therapeutically necessary: IHFA, ss. 24.1(1)-24.1(4). In the absence of such records, it is presumed that that amount payable for the service is nil: IHFA, s. 24.1(5).

[9] Under the IHFA and the Schedule, the IHFs bill facility fees to the Minister, which are paid on an honour system. Facility fees are paid after standard computerized checks are performed. The payment of facility fees is not an acknowledgment that the IHF met the requirements for the payment: see Schedule, General Preamble, s. 3. The Minister retains the authority under s. 24.3 of the IHFA to conduct post-payment reviews of claims that have been submitted. Under s. 24.3(4), the Minister may require the reimbursement of an amount paid to the IHF if the Minister is of the opinion that a circumstance described in s. 24.3(1) exists.

[10] Section 24.3 provides in part:
Refusal to pay, pay reduced amount or substitute amount: circumstances

24.3 (1) Under any of the following circumstances, the Minister may, with respect to a claim for payment for a service provided by a licensee or potential licensee, refuse to pay for the service, pay a reduced amount for the service, 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 service:

1. If the Minister is of the opinion that any or all of the following apply:

i. all or part of the service was not in fact rendered,

ii. the service has not been rendered in accordance with a requirement under this Act, or

iii. there is an absence of a record described in section 24.1.

2. If the Minister is of the opinion that the nature of the service is misrepresented, whether deliberately or inadvertently.

3. If the Minister is of the opinion that all or part of the service was not provided in accordance with prescribed quality and standards or, in the absence of regulations, not provided in accordance with generally accepted quality and standards for the facility and the service or services to be provided in the facility.

4. In such other circumstances as may be prescribed.

Statistical methods

(2) The Minister may, in determining amounts to be reimbursed under this section, use a random sample with a reasonable confidence interval of claims submitted by the licensee in respect of a service during a specified period of time and calculate the amount to be reimbursed for that service for that period or a portion of that period by assuming the results observed in the random sample are representative of all of the claims submitted by the licensee for that service during the period in question.

...

Post-payment notice that reimbursement is required

(4) Where the Minister has made a payment to a licensee or potential licensee and the Minister is of the opinion that a circumstance described in subsection (1) exists and that reimbursement to the Minister is required, the Minister shall notify the licensee or potential licensee of the decision to require reimbursement and the amount of reimbursement that is required.

[Emphasis added.]
III. Ministry’s audit of facility fee payments to Dixie

[11] Dixie provides diagnostic imaging services at several clinics that are licensed as IHFs (the “Dixie IHFs”). Each Dixie IHF has its own billing number that it uses to submit and receive payment from the Ministry for facility fees.

[12] Each facility fee that is eligible for payment is assigned a facility fee code set out in the Schedule. As noted in the Decision, at para. 20, the facility fee codes that are relevant for this matter are found in the Schedule under the heading “Diagnostic Ultrasound”:
a. Code J182: extremities [limb] ultrasound, “excluding vascular study”: see Schedule, under “Miscellaneous” subheading; and

b. Code J193: peripheral [blood] vessel assessment (a type of vascular study), using a “doppler scan or B scan, unilateral”: see Schedule, under “Vascular Systems” subheading.
[13] During a routine review of facility fee claims data in early 2019, a medical advisor in the Ministry noticed that five Dixie IHFs appeared to be provincial outliers regarding the frequency that facility fee code J193 was billed for the same patient on the same day as facility fee code J182: Decision, at paras. 23-25. The matter was referred to the Ministry’s Provider Audit and Adjudications Unit: Decision, at para. 26. The Ministry requested that each of those IHFs provide a statistically significant, random sample of medical records related to fees paid for facility fee codes J182 and J193 between April 1, 2016 and July 23, 2019 (the “Review Period”): see IHFA, s. 24.3(2). Dixie provided the requested records to the Ministry: Decision, at paras. 27-28.

[14] The Ministry conducted an audit pursuant to the IHFA by reviewing the records that Dixie provided. As part of the audit, the Ministry asked Dixie for a written explanation why those facility fee codes were billed together when, in the records examined, “there were no requests for peripheral vessel assessments from the referring physicians and there were no images or reports to support that peripheral vessel assessments were rendered”: Decision, at para. 29. Dixie responded that it used Doppler technology to examine blood flow while completing an extremities ultrasound “to enhance images and assist in the diagnosis and evaluation of a number of conditions”: Decision, at para. 30.

[15] Based on its review, including consideration of Dixie’s written explanation, the Ministry concluded that for the Review Period, none of the examined medical records showed that a peripheral vessel assessment had been performed in any case: Decision, at para. 31. The review also confirmed the Ministry’s view that Dixie was a provincial outlier in that it billed J193 (peripheral vessel assessment) over 95 percent of the time when it billed for J182 (extremities ultrasound). For the rest of the province, facility fee codes J193 and J182 were billed together by IHFs in less than ten percent of cases: Decision, at para. 32.

[16] Based on the audit review of the documents Dixie submitted, the Ministry concluded that there was no documentary support to justify performing a separate peripheral assessment nearly every time Dixie performed an extremities ultrasound. The Ministry considered such documentary support to be necessary to claim facility fees for both services for the same patient on the same day: Decision, at para. 33.

[17] In letters to each of the Dixie IHFs dated August 11, 2022 (the “Ministry’s Decisions”), the Ministry notified Dixie that the Minister had determined pursuant to s. 24.3(4) of the IHFA that reimbursement was required for payment of facility fees in the Review Period for facility fee code J193 when billed with facility fee code J182 for the same patient on the same service date. The Ministry determined that each of the Dixie IHFs had been overpaid and the total amount required to be reimbursed by all five Dixie IHFs combined was $1,107,692.96.
. Dr. Fialkov v. Health Services Appeal and Review Board

In Dr. Fialkov v. Health Services Appeal and Review Board (Div Court, 2023) the Divisional Court considered what may have been a doctor's challenge to the OHIP extra-billing prohibition. This ruling involved both an appeal [under s.22(1) of the IHFA] and a judicial review from an HSARB decision that held the doctor's private fees to be "unauthorized given that the procedure was an insured service":
[1] The appellant/applicant, Dr. Fialkov (“the doctor”) appeals and brings a judicial review of the decision of the Health Services Appeal and Review Board (“the Board”) dated December 21, 2022. In that decision, the Board confirmed the decision of the Ministry of Health (“the Ministry”) that payments and fees, professional and facility, that the doctor charged and received in relation to a patient who received a septorhinoplasty procedure were unauthorized given that the procedure was an insured service. The statutory appeal concerns the professional fee received contrary to s. 10 of the Commitment to the Future of Medicare Act, 2004[1] (“CFMA”), while the judicial review concerns the facility fee received contrary to s. 3 of the Independent Health Facilities Act[2] (“IHFA”).

....

The Board’s Decision

[10] The Board was required to determine whether the rhinoplasty component of the septorhinoplasty was medically necessary to obtain an adequate airway. If it were, it would render the whole septorhinoplasty an insured service for which the doctor was not able to charge.

[11] The Board found that the rhinoplasty component was necessary to obtain an adequate airway. The doctor performed spreader grafts that were inserted to widen the narrow nasal valves observed by the doctor prior to surgery. The spreader grafts were used to address/correct a functional problem and the spreaders were an element of the rhinoplasty. The use of these spreaders during the rhinoplasty was thus necessary for obtaining an adequate airway, rendering it medically necessary, and the whole procedure, the septorhinoplasty, was found to be an insured service pursuant to paragraph 15 of Appendix D of the Schedule of Benefits.

[12] In effect, the Board interpreted that the necessity of the spreader grafts made the whole service, the functional and the cosmetic or non-functional service, an insured service. The doctor performed a rhinoplasty that was necessary without obtaining prior approval, as is mandated. Thus, the doctor should have claimed for the complete procedure as an insured service and could not charge the patient either fee.

....

Analysis

[18] The doctor contends that the issue is whether a partial septorhinoplasty performed by him is an insured service preventing him from charging the patient. The doctor argues that he could charge the patient given his determination that the rhinoplasty was not surgically necessary. To understand the doctor’s argument, paragraph 15 of Schedule D of the Schedule of Benefits must be reviewed.

[19] Paragraph 15 reads as follows:
15. Septorhinoplasty

This is an insured service when the rhinoplasty component is necessary to obtain an adequate airway or for persons aged 16 years and under, at the time of trauma and for whom the rhinoplasty is completed, or is part of a preplanned staged repair, which is commenced, at any time following trauma and prior to the age of 19 years; or, for persons aged 17 years and older at the time of trauma and for whom the rhinoplasty is completed, or is part of a preplanned staged repair (See paragraph 6 of this Appendix).

In cases where a septoplasty is necessary to improve function and a rhinoplasty is done for cosmetic purposes, the Ministry of Health will pay the part of the operation that was medically necessary (e.g. if a septorhinoplasty is performed and a septoplasty was necessary to improve the airway, the Ministry of Health will pay M012 and the surgeon is entitled to claim the difference from the patient). However, if a septorhinoplasty is approved by the Ministry, no extra charge may be made to the patient.

Prior authorization from the Ministry of Health is required. A description of the external deformity should be provided.
[20] Based on the second half of this provision the doctor submits that if he had sought prior approval from the Ministry, he would have been approved to do a partial septorhinoplasty (ie. a septoplasty with spreader grafts) and while that would have been an insured service, he would have been entitled to recover the cost of the uninsured component of the full septorhinoplasty that he performed (ie. the cosmetic portion of the rhinoplasty) from the patient. He also would have been entitled to charge and/or accept a fee in respect of the cosmetic rhinoplasty portion of the procedure.

[21] The problem with this submission is that the doctor did not request approval for a partial septorhinoplasty; he was not granted approval for a partial septorhinoplasty, and he did not perform a partial septorhinoplasty. Rather he performed a septorhinoplasty and the issue the Board had to determine was whether this procedure was an insured service.

[22] In doing so the Board focused on the language at the beginning of paragraph 15 of Schedule D, which states that a septorhinoplasty is an insured service when the rhinoplasty component of the procedure is necessary to obtain an adequate airway.

[23] It is agreed that in reviewing the paragraph 15 and interpreting its meaning, the Court should focus on the ordinary and grammatical meaning of the words used. The modern principle is that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[6]

[24] With respect to the intention of Parliament, the legislature has made clear in the preamble of the CFMA that insured services are to be billed and paid through the publicly funded health care system and that there be continued support for the prohibition of a two-tier medicine, extra billing, and user fees in accordance with the Canada Health Act.[7]

[25] The scheme adopted by the legislature for the public health insurance system is enforced through the prohibition of charging persons privately for insured services. Section 10(1) of the CFMA states:
Persons not to charge more than OHIP

10 (1) A physician or designated practitioner shall not charge more or accept payment or other benefit for more than the amount payable under the Plan for rendering an insured service to an insured person.
[26] In addition, s. 3(3) of the IHFA states:
3(3) No person shall charge a facility fee, or accept payment of a facility fee, for or in respect of a service provided to an insured person in an independent health facility operated by a person licensed under this Act, unless the fee is charged to, or the payment is received from, the Minister or a prescribed person.
[27] Against this backdrop of policy and purpose, in reading paragraph 15 of Schedule D of the Schedule of Benefits, the Board correctly determined that if it concluded that the rhinoplasty was medically necessary to provide an adequate airway, then the procedure at issue was an insured service. This interpretation is consistent with the ordinary and grammatical meaning of the paragraph read in context and consistent with the intention of Parliament and the scheme of the Act.

[28] The Board also made a factual determination that the use of grafts by the doctor in the circumstances showed that the rhinoplasty was medically necessary to provide an adequate airway. We have no jurisdiction to review this factual determination on appeal. With respect to the judicial review application, this Court has not been provided with a basis to conclude that the Board’s finding that the rhinoplasty was required for airflow was unreasonable. The Board determined that the service was medically necessary and insured. The Board’s conclusion that the facility fee was charged in violation of s. 3(3) of the IHFA was therefore reasonable.

[29] Consequently, I conclude that the Board did not err in deciding that the professional fee and facility fee charged by the doctor were for an insured service, and the patient should not have been charged by the doctor.
. 1582235 Ontario Limited v. Ontario

In 1582235 Ontario Limited v. Ontario (Ont CA, 2020) the Divisional Court canvassed Ontario's regime for paying medical professions under the Health Insurance Act and the Independent Health Facilities Act, which had recently been amended:
[11] Medical services performed by physicians in Ontario are generally funded on a fee-for-service model. Under this model, physicians submit billing claims for insured medical services to the General Manager of the Ontario Health Insurance Plan (“OHIP”). OHIP will then pay the physician a professional fee for each service according to the fee codes set out in a Schedule of Benefits and Fees. This funding regime is governed by the HIA and its regulations.

[12] Funding for IHFs is governed by a separate statute, the IHFA. IHFs may charge “facility fees” to the Ministry on a fee-for-service basis in respect of overhead or operating costs and services that support the provision of the insured medical service. By way of example, if a radiologist reviews an ultrasound, a professional fee may be billed to OHIP for that insured service. Additionally, the IHF where the ultrasound image was generated will be entitled to charge a separate facility fee associated with that service. This latter fee, the facility fee, is meant to cover, amongst other things, the cost of the equipment and having a technologist produce the ultrasound image.

[13] Pursuant to the IHFA, the licensing process for IHFs is overseen by the Director of Independent Health Facilities (the “Director”) in the Ministry.

....

Legislative Amendments

[17] As previously noted, in December 2019, the HIA and the IHFA were amended. Amongst other things, the amendments replaced the PPRB with the HSARB in the HIA. The new IHFA now also expressly authorizes the Ministry to form an opinion on the overbilling of facility fees, which immediately gives rise to debt for which the Ministry can engage in set-off. After the Ministry has formed this opinion, a licensee can, pursuant to the IHFA, request a hearing before the HSARB.


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Last modified: 13-01-25
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