CITATION: The General Manager, The Ontario Health Insurance Plan v. McCorriston, 2018 ONSC 3682
DIVISIONAL COURT FILE NO.: 17-2267 DATE: 2018/06/14
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Thorburn, Gareau and LeMay JJ.
BETWEEN:
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Appellant
– and –
ANNA MCCORRISTON Respondent
Baaba Forson, for the Appellant
Colin McCorriston, for the Respondent
HEARD at Ottawa: June 13, 2018
LEMAY J.
[1] The General Manager of the Ontario Health Insurance Plan (“OHIP”) appeals the decision of the Health Services Appeal and Review Board (“HSARB”) granting the Respondent, Anna McCorriston, payment for health treatment for hip surgery outside of Canada in 2011. The surgery was conducted in Colorado on December 13th, 2011.
[2] The Respondent sought payment from OHIP for this surgery, and payment was denied. As a result, the Respondent appealed to the HSARB.
[3] The HSARB granted the Respondent’s appeal. The only issue before the HSARB was whether the hip surgery was included as an insured service. The General Manager argued that the hip surgery was not an insured service because written approval for payment of those services had not been provided in advance of the surgery being performed.
[4] The HSARB rejected the General Manager’s position and authorized payment for the hip surgery. The HSARB determined that the final decision of the General Manager was issued on December 12th, 2011. Therefore, the HSARB determined that the criteria for approving payment for an Out Of Country (“OOC”) medical expense were met because the final decision of the General Manager had been issued before the services were granted. The HSARB also found that the Respondent had satisfied the conditions under section 28.4(4) of the General Regulation under the Health Insurance Act and was, therefore, entitled to reimbursement.
[5] The General Manager appeals to this Court.
Issues
This case presents two issues that must be determined:
a) Did the HSARB err in its decision that the General Manager’s letter of December 11th, 2011 was a denial of services under Section 28.4(4)?
b) If the answer to the first issue is yes, did the HSARB interpret section 28.4(4) improperly by granting payment for OOC services that were performed without prior approval?
The parties agree that the standard of review on both of these questions is reasonableness.
Background Facts
[6] At the time of the surgery, the Respondent was a 17 year old elite figure skater. She had been experiencing hip problems. In April of 2016, she was diagnosed with right hip problems and advised by Dr. Paul Beaule, an Ontario Orthopedic Surgeon, that she should have an osteotomy. This was invasive surgery that would have required several months of recovery and might very well have resulted in the Respondent being unable to continue with her figure skating career.
[7] The Respondent was not happy with this proposed solution, and conducted her own research. She also saw additional specialists in the summer and fall of 2011. During the course of these investigations, the diagnosis of the problems in her right hip was confirmed, and problems with her left hip were found. In her research, the Respondent also determined that Dr. Marc Phillippon, a Canadian trained orthopedic surgeon in Colorado, could perform much less invasive surgery to fix her problems.
[8] The Respondent returned to Dr. Beaule on November 25th, 2011 and asked him for a referral to Dr. Phillippon. Dr. Beaule did not agree with Dr. Phillippon’s approach to the type of problem that the Respondent had. Instead, he offered the Respondent a referral to another Orthopedic surgeon in London, Ontario.
[9] The Respondent had lost confidence in Dr. Beaule, and did not follow up on his referral. Instead, she sought a referral from her pediatrician, Dr. Joan Gravelle. Dr. Gravelle completed and signed a Request for Prior Approval for Full Payment of Insured Out of Country Health Services application. This application was dated December 8th, 2011, and was received by OHIP on December 9th, 2011.
[10] OHIP responded to this letter on December 12th, 2011. The details of this response are relevant to the first issue, and I will address the letter more fully below.
[11] In the meantime, the Respondent had met with Dr. Phillippon and he had confirmed that he could perform the necessary surgical procedure on her hip. A date for surgery was booked for February 14th, 2012. However, the surgery was performed on December 13th, 2011. It was successful.
[12] Dr. Gravelle’s application on behalf of the Applicant was rejected by OHIP on December 30th, 2011. The Appellant appealed the decision to deny her funding, and a hearing was held before the HSARB on March 19th, 2014 in Ottawa. A decision granting the Respondent coverage and, therefore, payment, for this procedure was issued on December 24th, 2014.
[13] The General Manager sought a reconsideration of this decision, which was denied on December 9th, 2016. The General Manager now appeals to this Court.
The Relevant Statutory Provisions
[14] There are two provisions that govern the request for payment in this case, sections 28.4(4) and 28.4(7) of Regulation 552: General under the Health Insurance Act R.S.O. 1990 C. H.6. Those sections state:
28.4(4) Despite anything in this section as it read before April 1, 2009, a service is not, and is deemed never to have been, an insured service under this section unless the following conditions are satisfied:
- Written approval of payment of the amount for the services is granted by the General manager before the services are rendered, and
(i) Written approval of payment of the amount for the services is granted by the General Manager before the service are rendered, and
(ii) The services are rendered within the time limit set out in the written approval.
- For services rendered in emergency circumstances, written approval of payment of the amount for the services is granted by the General Manager, either before or after the services are rendered.
28.4(7) An amount is payable for insured services prescribed by subsection (2) if the following conditions are met.
- An application for approval of payment is submitted to the General Manager on behalf of the insured person,
(i) By a physician who practices medicine in Ontario, or
(ii) By an emergency patient referral service, but only in emergency circumstances.
- The application mentioned in paragraph 1 includes written confirmation that the conditions set out in clauses (2) (a) and (b) and one of the conditions set out in clause (2) (c) are satisfied, from,
(i) A physician who is a specialist, as defined in the schedule of benefits, in the type of service for which approval of payment is sought,
(ii) A general practitioner, if the type of service for which approval of payment is sought is within the general practitioner’s scope of practice, or
(iii) In emergency circumstances, a physician who practices medicine in Ontario or an emergency patient referral service.
[15] Section 20(1) of the Health Insurance Act states:
20(1) The following persons may appeal the following matters to the Appeal Board:
A person who has applied to become or continue to be an insured person may appeal a decision of the General Manager refusing the application.
An insured person who has made a claim for payment for insured services may appeal a decision of the General Manager refusing the claim or reducing the amount so claimed to an amount less than the amount payable by the Plan.
[16] In addition to these three operative provisions, section 21(1) of the Health Insurance Act states that the HSARB has the power to order the General Manager to do anything that the General Manager has the authority to do under the regulations. In other words, in making its decisions, the HSARB stands in the shoes of the General Manager.
[17] Finally, section 24 of the Health Insurance Act, states that that an appeal lies from the HSARB to the Divisional Court. Those appeals may involve questions of law, fact or both, and the Divisional Court has the power to affirm or rescind the decision of the HSARB and may exercise all of the powers of the HSARB.
Issue #1- Was the Letter of December 12th, 2011 a Denial of Services?
[18] No. In my view, the HSARB’s conclusion that the letter of December 12th, 2011 was a denial of services is unreasonable. To the extent that it is a finding of fact, there is also palpable and overriding error in the HSARB’s decision.
[19] I reach that conclusion for three reasons. First, there is the text of the letter itself. The entire letter states:
Dear Dr. Gravelle:
RE: Anna McCorriston, Health Number 4915 424 230, Reference Number M20111209 011
In order to complete the adjudication for the application for out-of-country funding submitted on behalf of the above named patient, ministry staff require the following medical information:
You stated in your accompanying letter “to my knowledge Anna has seen the following MD’s for her hip problems: Dr. Darrell Menard, Dr. Beaulne, Dr. Lalonde, Dr. Philippon.”
In order for an application to be approved for funding, the following criteria must be met:
The treatment is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as Anna; AND
Either the treatment is not performed in Ontario by an identical or equivalent procedure OR the treatment is available in Ontario but it is necessary that the patient travel out of Canada to avoide a delay that would result in death or medically significant irreversible tissue damage; AND
The treatment must not be experimental or research-based.
In order to process this application the ministry requires an Ontario Orthopedic Surgeon to provide a letter of support indicating that the requested treatment fulfills the above criteria.
When the requested additional information is received by the ministry, the application will be processed.
If the required information is not received by the ministry within 15 business days, the prior approval application will be considered to be abandoned and the file will be closed.
Please note: OOC health services received without written prior approval from the ministry are not eligible for reimbursement and all costs associated with these services will be the sole responsibility of the patient.
Cc: Ms. Anna McCorriston
[20] There is nothing in this letter that constitutes a denial of services. Instead, the letter is asking for additional information so that the General Manager can make a decision. The letter also provides a warning that services will be denied if approval is not received in writing. The additional information, and the warning, would not have been necessary if the General Manager had decided to deny the requested treatment. There is no reasonable way to read this letter as a denial letter.
[21] Second, a denial letter is actually sent on December 30th, 2011. Although it is not necessary to review the terms of that letter, it is clear on the face of the letter that it is a denial. The letter clearly states that the request for payment is denied, and it sets out the appeal procedure that can be followed. This is completely different from the December 12th, 2011 letter, which contains none of this information.
[22] Third, the HSARB erred in its conclusions about the Respondent’s understanding of what the effect of the December 12th, 2011 from the General Manager was. Although the subjective belief of the Respondent as to the effect of this letter is not relevant, it was a factor that the HSARB considered. In doing so, the HSARB fell into error.
[23] At paragraph 14 of the December 24th, 2014 decision, the HSARB states:
By letter dated January 11, 2012, the Appellant appealed this decision on the basis that she believed her application was rejected by the Ministry on December 12, 2011.
[24] The problem with this conclusion is the letter that the Respondent sent on January 11th, 2012 actually states as follows:
To Whom It May Concern:
With respect to the above noted matter, I am writing to you to request a hearing in order to appeal the decision made by the Ministry of Health and Long-Term Care, with respect to my request for payment for Out of Country Health Services. I have attached a copy of the letter of denial dated December 30, 2011, which I received from the Ministry of Health on January 4th or 5th, 2012.
I authorize my parents, Marianne Cuhaci and Colin McCorriston to represent me at the hearing. As well, I authorize the Health Services and Review Board to release any and all information pertaining to myself to either or both my parents.
I look forward to your response.
[25] It is clear from the Respondent’s letter that she understood that she was appealing the December 30th, 2011 decision, and not the December 12th, 2011 decision. Further, in the Respondent’s correspondence with the HSARB on February 27th, 2012, she states that the decision she is appealing from is the December 30th, 2011 decision. The HSARB’s conclusions about the Respondent’s subjective beliefs about the December 12th, 2011 letter are wrong, and unsupported by the record that was before the HSARB.
[26] Finally, I should address the HSARB’s conclusion that it was reasonable to treat the December 12th, 2011 letter as a denial because the Respondent could not fulfill the requirement to provide an opinion from an orthopedic surgeon to support her application. There are two problems with this conclusion. First, the Application form completed by Dr. Gravelle does not mention that it was impossible to obtain the opinion of an orthopedic surgeon. Second, if that was the case, then it was incumbent upon the Respondent to advise the Ministry of that fact and make a decision. For the above reasons, I find that the HSARB’s decision on this point is not reasonable.
[27] On this point, Counsel for the Respondent referred us to three other decisions of the HSARB: JEO v. General Manager, OHIP 2014 15317, C.B v. General Manager 2017 16208 and K.D. v. General Manager 2014 69381. Counsel relies on these decisions to argue that the type of decision provided by the General Manager on December 12th, 2011 is a type of denial. On the Respondent’s theory, once an application for OOC funding is submitted, any correspondence from the General Manager that is not an approval is a denial. In the Respondent’s view, to find otherwise would be to vitiate the rights of appeal.
[28] I reject these arguments. I start with the claim that the decision of December 12th, 2011 is effectively a denial. There are two problems with this assertion. First, as I have noted above, on the language of the letter it is clearly not a denial. It is a request for further information, with the possibility that the claim will be approved. Second, accepting this argument would be permitting someone to make an application, even with none of the required supporting documentation and then receive compensation for surgery, even if the General Manager did not ever have the opportunity to consider the facts underlying the application.
[29] While I appreciate that part of the purpose of this legislation is to ensure that Ontarians are provided with timely access to health care, there are also other valid purposes behind these regulations. Most importantly, in dealing with OOC claims, the General Manager should have the opportunity to consider whether the service is available in Canada, whether the General Manager can negotiate a better rate for the service, and whether the General Manager has contracted with other OOC providers to provide the service. Accepting the Respondent’s arguments on this point would have the effect of ignoring these valid legislative purposes.
[30] Second, there is the question of whether requiring applicants to wait for a denial would vitiate their right of appeal. Again, I reject this argument. I will review my reasons for doing so in more detail below. However, I would note that the right of appeal is not vitiated because the HSARB can stand in the shoes of the General Manager, which can include directing him that he should have made a different decision.
[31] As a result, I conclude that the decision being appealed from is the December 30th, 2011 decision. The HSARB’s conclusion that it was the December 12th, 2011 decision is unreasonable and cannot be supported by the facts.
Issue #2- The Interpretation of Section 28.4(7)
[32] There is no dispute between the parties that the services that Dr. Phillippon provided were not emergency services. The Appellant argues that section 28.4(7) requires that approval be given by the General Manager for any OOC expense for non-emergency services. If approval is not given by the General Manager in advance, then the service is not, and deemed never to have been, an insured service.
[33] The Appellant advances two arguments in support of this assertion. First, the plain wording of the statute supports the Appellant’s position. It is clear from 28.4(4)1 that the General Manager must provide prior written approval for both the service, and the amount of the service. If this approval is not provided, then the services cannot be insured.
[34] Second, this Court has considered this precise issue in C.C.-W. (Litigation Guardian of) v. Ontario (Health Insurance Plan, General Manager) ((2009) 2009 712 (ON SCDC), 95 O.R. (3d) 48). In that decision, Swinton J. was considering the interpretation of the then section 28.4(5) of the Regulation. Although the language has changed, it is clear that the changes are designed to circumscribe the authority of the General Manager to grant retroactive payments even more than they were when C.C.-W. was decided.
[35] In concluding that the General Manager does not have the authority to retroactively approve non-emergency expenses, Swinton J. stated (at paragraphs 53, 56 and 57):
53 Neither the Act nor the regulations expressly confer a discretion on the General Manager to give retroactive prior approval for out-of-country medical treatment or to waive the requirement for prior approval.
56 Indeed, when s. 28.4(5) of the regulation is read as a whole, it is clear that the regulation contemplates approval will be obtained before the medical treatment begins, since the approval is to be given for an amount determined by the General Manager, and services are to be provided within the time period set out in the approval. In this context, “must” in s. 28.4(5)2 is mandatory, not directory.
57 Such a reading is also consistent with the purpose of the Act and regulations. According to the affidavit of Beverly Lyman, Senior Consultant with the Out-of-Country Unit, Provider Services Branch of the Ministry, dated September 23, 2008, the prior approval process has a number of advantages. It ensures that the Plan is able, through negotiations, to obtain the usual and customary amount charged to major insurers. Further, when prior approval is sought, the Ministry may be able to advise the applicant’s physician of a facility in Ontario that can provide the needed treatment. If not and the individual must go outside Ontario, applicants will have advance notice of the scope of their coverage under the Plan, alerting them to the services covered and the duration of coverage.
[36] This analysis continues to apply to the section as it has been re-drafted. I adopt it.
[37] This brings me to the Respondent’s argument that the interpretation proposed by the Appellant would lead to absurd results. The Respondent states that the interpretation proposed by the General Manager, and adopted in C.C.-W. is absurd because it would frustrate the rights of appeal in the legislation. I do not agree.
[38] I accept the Respondent’s view that the decision of the General Manager to deny treatment must be appealable, and that the right of appeal must be meaningful. However, that result is obtained by appealing a decision of the General Manager to deny payment. Once a decision to deny payment is made, the HSARB is then entitled to review that decision even if the person seeking treatment has the treatment performed between the time that the General Manager makes his decision and the HSARB makes its decision.
[39] The HSARB is correct that such a review would be a hearing de novo. In an appropriate case, this would permit the HSARB to review the General Manager’s decision and come to a different conclusion regardless of whether there was new evidence. The HSARB would also have the authority to grant payment for treatment that had taken place after the General Manager’s decision had been made. The HSARB stands in the shoes of the General Manager and can direct him to grant treatment that he had denied. Indeed, Counsel for the General Manager properly conceded this point in the course of her argument before us.
[40] However, neither the General Manager nor the HSARB have the authority to do what the HSARB actually did in this case, which is to approve non-emergency treatment that had taken place before the initial decision had been made by the General Manager.
[41] Counsel for the Respondent pointed to the purposes of the legislation in support of his argument. These purposes do not assist him. As I have noted at paragraph 29 of my reasons, there are a number of different purposes underlying this regulation. They include ensuring that the General Manager has an opportunity to make a decision on these issues. The various purposes of the legislation are best satisfied by the approach I have described above.
[42] In the result the HSARB exceeded its jurisdiction, and its decision must be quashed.
Conclusion
[43] For the foregoing reasons, the appeal of the General Manager is allowed, and the decision of December 30th, 2011 is restored.
[44] Counsel for the General Manager advised the Court that she was in the Court’s hands as to costs. Given the unique nature of this case, and given the fact that there were other decisions of the HSARB that supported the Respondent’s position, I am of the view that no costs should be ordered in this case.
LeMay J.
I agree _______________________________
Thorburn J.
I agree _______________________________
Gareau J.
Date of Reasons for Judgment: June 14, 2018
Date of Release: June 14, 2018
DIVISIONAL COURT FILE NO.: 17-2267 DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Thorburn, Gareau and LeMay JJ.
BETWEEN:
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Appellant
– and –
ANNA MCCORRISTON Respondent
REASONS FOR JUDGMENT
LeMay J.
Date of Reasons for Judgment: June 14, 2018
Date of Release: June 14, 2018