E.H. v. OHIP (General Manager), 2019 ONSC 7011
CITATION: E.H. v. OHIP (General Manager), 2019 ONSC 7011 DIVISIONAL COURT FILE NO.: 361/16 DATE: 20191211
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, D.L. CORBETT and C. MacLEOD JJ.
B E T W E E N:
E.H., Appellant
- and -
GENERAL MANAGER OF THE ONTARIO HEALTH INSURANCE PLAN, Respondent
Counsel: Joseph J. Colangelo, for the Appellant Michael Dunn and Ravi Amarnath, for the Respondent
Heard at Toronto: May 27, 2019
DECISION
D.L. Corbett J.:
[1] This is an appeal from a decision of the Health Services Appeal and Review Board (the “Board”)[^1] dismissing an appeal from a decision of the General Manager of the Ontario Health Insurance Plan (the “GM” of “OHIP”) dated September 29, 2009, refusing OHIP funding for out-of-country medical services incurred by the Appellant at the Austen Riggs Centre in Massachusetts (“ARC”) between September 2009 and October 2011.
[2] The Board’s conclusion is summarized at paragraph 3 of its decision:
… the treatment received by the Appellant at ARC is not prescribed as an insured service under section 28.4(2) of Regulation 552 under the Health Insurance Act…, and in any event, the amount payable would be nil under section 28.4(6)2, and therefore the treatment is not eligible for reimbursement.
[3] This conclusion flows from two findings of the Board:
(a) The Appellant did not establish that the services she received from ARC were not available at a facility with which OHIP had a preferred provider agreement, within the meaning of s.28.4(6)3 of the OHIP Regulation; and
(b) ARC is not a “hospital” or a “health facility” within the meaning of s.28.4(2) of the OHIP Regulation.
Either finding is a sufficient basis for the Board’s decision. For the reasons that follow, I conclude that the Board’s first conclusion is reasonable and therefore that the appeal must be dismissed.
[4] I address the issue on which this appeal turns first. I then address the question of whether the Appellant was misled by the GM at the time she applied for coverage to pay for ARC’s services. I find that she was misled, but that this does not affect the disposition of this appeal. I then consider and decline to decide whether the second basis for the Board’s decision is also reasonable: it is not necessary to make that decision in this case and I am not satisfied that necessary arguments were made to and considered by the Board on this issue. Finally, I decline to decide Charter issues raised by the Appellant because the necessary factual basis for these issues was not established.
Background Facts
[5] The Appellant, now in her mid-30’s, has faced a number of health problems including severe mental health issues. She was treated for many years at the Centre for Addiction and Mental Health (“CAMH”), Ontario’s leading psychiatric treatment facility, including seven admissions to CAMH between 2003 and 2009 (ranging in length from overnight to a three month hospitalization in 2007).
[6] CAMH treated the Appellant when she was in crisis. It was not able to improve her condition materially on a long-term basis: on the record before the Board, there is no facility in Ontario for long-term treatment of patients with the Appellant’s chronic, complex, severe mental health issues.
[7] The Appellant was discharged from CAMH on July 9, 2009 after 10 days of crisis treatment for suicidality. She was re-admitted a week later after attempting suicide by hanging, her third suicide attempt. When the Appellant was discharged from CAMH on August 26, 2009, in the opinion of her doctors she was stabilized, but she still was at serious risk. In their opinion services were not available in Ontario to treat the Appellant’s illnesses effectively, but there were facilities that could help the Appellant in the United States, notably ARC.
[8] The Appellant and her family, in consultation with doctors at CAMH, decided to pursue treatment at ARC. On September 2, 2009, the Appellant wrote to her treating psychiatrist, Dr Golts, asking her to sign “OHIP forms” for out of country treatment at ARC. Dr Golts submitted the forms to OHIP, requesting authorization for funding for residential treatment at ARC for 120 days, starting September 17, 2009. Dr Golts stated in that application:
This patient has treatment resistant mood disorder + PTSD. Has not benefitted from multiple hospitalizations in Ontario’s top psychiatric facility. Patient requires longer term admission to focus on long term personality change and multiple suicide attempts. There is no comparable treatment facility that offers the same level of intensive treatment in Ontario.
[9] The recommendation from Dr Golts was consistent with past practice at CAMH for patients requiring intensive residential mental health services. CAMH doctors had previously recommended ARC and had obtained OHIP approval for funding. Between March 3, 2006 and February 3, 2009, OHIP approved 13 such funding requests for treatment at ARC.
[10] OHIP received the Appellant’s funding application on September 3, 2009, and responded to Dr Golts by email on September 4, 2009, advising that, as of April 1, 2009, OHIP had changed its approach to payment for out of country services and had entered into “preferred provider arrangements” (“PPAs”) with some US residential treatment providers. Under this new approach, out of country residential treatment was eligible for funding “only if service is rendered at a PPA facility”. A list of preferred providers was attached and ARC was not on the list. The email advised Dr Golts that the Appellant should select a facility from the attached list and then submit a revised application.
[11] OHIP formally confirmed its denial of coverage of ARC services in a letter dated September 29, 2009:
OOC (out of country) residential treatment is eligible for Ministry funding ONLY if the service is rendered at a PPA (preferred provider arrangement) facility.
Attached to the letter was the list of OHIP preferred providers with summary information about locations and services. It is this decision that was appealed to the Board (the “GM’s Decision).
[12] The Appellant’s health condition was considered grave by her physicians. In their opinion, she required immediate placement in a longer term facility, not available in Ontario. The appellant checked into ARC on September 30, 2009, and remained there for more than two years, to October 22, 2011, aside from brief visits home for vacations and time at Berkshire Medical Centre due to elevated suicide risk.
[13] The Appellant received intensive psychiatric care at ARC, including intensive psychotherapy, comprehensive management of medication, and community living therapy. This treatment led to a significant improvement in her health, and, since her discharge, she has been able to live in a community setting in Toronto, supported by others with health challenges. This description of her improvement is confirmed by diagnostic testing: the Appellant’s “Global Assessment of Functioning” (“GAF”) was 43 immediately before her admission to ARC, and was 65 on her discharge from ARC – descriptively, an improvement from having “serious symptoms” to “some mild symptoms”. The Appellant now does not present as at immediate serious risk.
The Board Decision
Standard of Review
[14] The parties agree that “constitutional” issues decided by the Board are reviewable on a standard of correctness, including questions of law respecting Charter rights.[^2] All other aspects of the Board’s decision challenged before us on this appeal are reviewable on a standard of reasonableness.[^3]
(a) Issue 1: the Appellant did not establish that the services she obtained at ARC were not available at any of OHIP’s preferred providers.
[15] Eligibility for out-of-country residential treatment is prescribed by s.28.4(6) of the OHIP Regulation, as follows:
The amount payable for insured services prescribed by subsections (2) and (3) is determined as follows:
If the services are rendered in a hospital whose operator is a preferred provider, the amount payable is the amount provided in the preferred provider agreement.
If the services are covered by one or more preferred provider arrangements, but the insured person receives identical or equivalent services in or from a hospital or health facility whose operator is not a preferred provider, the amount payable is nil.
If the services are not covered by a preferred provider agreement, the amount payable is the usual and customary amount charged by similar facilities under similar circumstances to major insurers for services rendered, to the persons they insure, in facilities located in the jurisdiction where the insured services are rendered.[^4]
[16] ARC is not a preferred provider, so s.28.4(6)1 does not apply. The Board found that, unless it is established that “the services [provided to the Appellant at ARC] are not covered by a preferred provider agreement” pursuant to s.28.4(6)3, then s.28.4(6) 2 applies and “the amount payable is nil”. This conclusion is consistent with the text of this provision and is reasonable.
[17] The only evidence on whether “the services [provided to the Appellant at ARC] are not covered by a preferred provider agreement” came from the Appellant’s expert witness, Dr Garfinkle, a senior psychiatrist, knowledgeable about treatment facilities in Canada and the United States. Dr Garfinkle’s evidence on this issue was summarized by the Board as follows:
Dr Garfinkle supported ARC as a treatment facility for the Appellant for reasons that included the staffing ratio, the skills of the staff, and the four times a week intensive psychotherapy. Dr Garfinkle wrote in his report dated August 26, 2014 that ARC was selected by the Appellant due to its reputation for effective treatment; not because it is unique but because of its capacity to provide long-term intensive psychotherapy, both individual and group in a multidisciplinary milieu program, and had the capacity for neuropsychological evaluation and pharmacological management. He further wrote that the capacity to provide a secure trusting environment was essential in the decision….
Dr Garfinkle testified that he did not have the preferred provider list at the time of the family meeting in September 2009. Having since reviewed the list, his evidence was that … ARC provides a superior level of care [to the facilities on the list of preferred providers]. He stated that he has been to McLean Hospital (a preferred provider on the list) and it is good, but a family he was involved with had a tragedy coming back from there, so it would have been less than ideal to send the Appellant there. He stated that Fulshear (another preferred provider on the list) probably would have taken her, but the staff ratio there would have been worse than at ARC.
The Appeal Board notes that Dr Garfinkel did not indicate in his evidence that the treatment provided at ARC is of a different type than that provided by the facilities on the PPA list, McLean Hospital and Fulshear in particular. He wrote that the treatment is not unique. There is no evidence that the facilities on the PPA list do not provide the type of treatment that was provided to the Appellant at ARC (ie psychotherapy in an integrated hospital environment; 24 hours per day nursing observation; assessment and intervention; multidisciplinary assessment and treatment planning; and programming in the therapeutic community on an individual and group basis).
Dr Garfinkel’s evidence that ARC provides a superior level of care than the facilities on the PPA list indicates that in his view the treatment at ARC is of a better quality than the treatment provided at the facilities on the PPA list….
… The Appeal Board notes that there is no specific evidence regarding difference in patient outcomes at the facilities, or that the Appellant could not be treated at one or more of the facilities on the list.
[18] In this area of the law, it is trite to observe that insured persons are not entitled to funding for “the best” treatment or to facilities and services of choice. On the evidence of the Appellant’s witness, Dr Garfinkle, the services the Appellant obtained at ARC could have been provided at two OHIP preferred providers: McLean Hospital and Fulshear. Dr Garfinkle’s evidence explains why he would recommend ARC over these facilities for the Appellant, but not why these facilities could not provide the services the Appellant obtained from ARC. These facilities were “good”. It may be that ARC was “better” but it is not established that the care at McLean Hospital and Fulshear were deficient or inappropriate for the Appellant’s care.
[19] The Board’s decision on this point is supported by the evidence before it and is reasonable. And so the Board’s conclusion that the Appellant did not establish that her claim fit within s.28.4(6)3 is also reasonable. On this basis alone, the appeal must be dismissed.
(a) Issue 2: The Board’s conclusion that OHIP did not mislead the applicant was unreasonable but this conclusion does not affect the result of this appeal
[20] The information provided to the Appellant by OHIP in September 2009 mis-stated the test for out of country insurance coverage. OHIP said that coverage was available “only” at a preferred provider. That is simply not so on the plain words of s.28.4(6)3. Coverage may be available if the required services “are not covered by a preferred provider agreement”. The GM’s interpretation of this provision, negating s.28.4(6)3, is unreasonable and obviously so, and the Board’s decision that the GM did not mislead the Appellant is likewise unreasonable.
[21] In many administrative contexts, appeals are based on the record before the original decision-maker. If that had been the case here, it would have been unfair: the record before the original decision-maker was incomplete because of misinformation provided by OHIP about the test for coverage for a facility that is not a preferred provider.
[22] However where, as here, the appeal before the Board is conducted de novo, an Appellant has an opportunity to place a complete record before the Board hearing the appeal. So, although the Appellant was misinformed at the time of her application, that misinformation did not prejudice her at the hearing before the Board: she had a full opportunity to try to meet the test in s.28.4(6)3 before the Board, and this opportunity was not prejudiced by the misinformation provided to her in September 2009. Therefore, although the Board’s finding on this issue was unreasonable, that finding does not affect the disposition of this appeal.
(b) Issue 3: It is not necessary to decide whether the Board’s decision that ARC is not a “hospital” or a “health facility” is reasonable
[23] As noted by the Board, prescribed insured services rendered outside Canada must be provided at either a health facility or a hospital: OHIP Regulation, s.28.4(2). The parties agreed before the Board that ARC is not a “hospital”.[^5]
[24] The definition of “health facility” in the OHIP Regulation is:
(b) A health facility licensed as a health facility by the government in whose jurisdiction the health facility is situated in which complex medical and complex surgical procedures are routinely performed.
(c) Whether or not described in clause (a), a facility licensed by the government in whose jurisdiction the facility is situated with whose operator the Minister has entered into a preferred provider arrangement.
[25] With these provisions in mind, the Board found as follows (paras. 79-80):
A letter dated January 3, 2014 from ARC to Counsel for the Applicant was entered into evidence at the hearing. The letter confirmed that ARC was a licensed psychiatric hospital in the Commonwealth of Massachusetts, treated complex psychiatric problems, but did not routinely perform complex medical and surgical procedures,
Based on this evidence, the Appeal Board finds that ARC is neither a hospital nor a health facility as defined in section 28.4(1) and consequently, the services received by the Appellant at ARC would not be prescribed as insured services under section 28.4(2).
[26] When read together with the provisions in s.28.4(6), this finding could lead to the following result:
(a) Under s.28.4(6), an insured is required to obtain necessary out of country services from a preferred provider.
(b) By definition, a preferred provider is a “health facility” by virtue of s.28.4(2)(b).
(c) If required services are not covered by a preferred provider agreement, pursuant to s.28.4(6)3, then services will only be covered in a place where “complex medical and surgical procedures are routinely performed”, even if there is no such facility.
[27] The Appellant’s argument in this case is that ARC’s services are not provided by facilities on the preferred provider list, and given her severe and complex mental health care needs, she is entitled to coverage under s.28.4(6)3. On the Board’s logic, if it had found that the Appellant had established this argument, it would then have denied coverage because ARC is not a “health facility”.
[28] This potential consequence of the Board’s interpretation of “health facility” was explained on a policy basis by the GM’s expert, Dr Voysey in the following passage of his draft report, elicited during cross examination:
In some cases, such as complex suicidal young adult females with medical problems there may be a certain mortality and morbidity that the population/Province has to accept much as it does with any other medical issues (cancers, transplants, genetic problems, etc.) given the broader issues of resource allocation, values and priorities.[^6]
[29] The Appellant and her family have read the Board’s conclusion as follows: the definition of “health facility” precludes potentially life-saving treatment for a patient such as the Appellant. The consequence “may be a certain mortality” that “the population/Province (including the Appellant and her family) [have] to accept.” This consequence is a plank in the Appellant’s Charter argument: she argues that her rights to life and security of the person are infringed by the decision to “remove” ARC from the list of preferred providers.
[30] In oral argument, the court raised concerns with the Board’s interpretation of “health facility” in the context of mental health services: it would seem arguable that the Board’s interpretation did not consider a contextual reading of the phrase “health facility” for treatment of complex psychiatric disorders in a residential setting. It did not, for example, consider that “treating complex psychiatric problems” could be considered “performing complex medical procedures” within the meaning of s.28.4(6). Nor did it apply Charter values to its interpretation of the phrase “health facility” in this context. It appears that these arguments were not made to the Board.
[31] Since this court’s decision on Issue 1 is a complete answer to the appeal, and these arguments were not made to the Board, it is not necessary for the court to rule on the Board’s finding that ARC is not a “health facility”. I would decline to decide this issue, but wish to be clear that the court is not ruling on the reasonableness of the Board’s finding on this point.
Issue 4: the Appellant’s Charter arguments
[32] It is not established that funded services for the Appellant were not available from a preferred provider – undercutting a necessary factual premise for the Appellant’s Charter arguments. Alleged chronic underfunding of mental health services cannot arise in a case where funding was, in fact, available. Alleged Charter violations for misleading an insured about the availability of coverage cannot arise where the insured has had a chance to address the coverage issues fully in a hearing de novo. The GM’s decision not to enter into a preferred provider agreement with ARC, by itself, does not infringe a Charter right: there is no constitutional right to services at ARC. And the GM’s decision not to enter a preferred provider agreement with ARC, on the reasonable factual finding of the Board, did not deprive the Appellant of appropriate funded out of country services at either McLean Hospital or Fulshear.
[33] Given these conclusions, it is not necessary for this court to decide the Charter issues, and I decline to do so.
Conclusion
[34] The Appellant did not establish that the services she received from ARC “were not covered by a preferred provider agreement” within the meaning of s. s.28.4(6)3. of the Regulation. The appeal is dismissed. The parties agreed that there be no costs and it is so ordered.
___________________________ D.L. Corbett J.
I agree: ___________________________ Kiteley J.
I agree: ___________________________ C. MacLeod J.
Date of Release: December 9, 2019
CITATION: E.H. v. OHIP, 2019 ONSC 7011 COURT FILE NO.: DC 361/16 DATE: 20191211
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Kiteley, D.L. Corbett and C. MacLeod JJ.
BETWEEN:
E.H. Appellant
– and –
General Manager of the Ontario Health Insurance Plan Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: December 11, 2019
[^1]: EH v. OHIP, 2016 ON HSARB 47971. [^2]: Dunsmuir v. New Brunswick, 2008 SCC 9, para. 58. [^3]: Dunsmuir v. New Brunswick, 2008 SCC 9, paras. 51-53. [^4]: O. Reg. 552, RRO 1990, O. Reg. 552 (the “OHIP Regulation” or the “Regulation”) (emphasis added). [^5]: I would not address the merits of this concession for the same reasons that I decline to rule on the reasonableness of the Board’s interpretation of “health facility”. [^6]: Quoted at paragraph 34 of the Appellant’s Factum.