Goldenberg v. Ontario (General Manager, Health Insurance Plan), 2013 CanLII 69934

File No. 11-PPR-0002

PHYSICIAN PAYMENT REVIEW BOARD

PRESENT:

Vivek Rao, MD, Chair Jacqueline Gumienny, Vice-chair Kevin Smith, MD, Member Samir Gupta, MD, Member

Heard December 17th, 2012 at Toronto, Ontario

IN THE MATTER OF A REQUEST FOR HEARING UNDER SECTION 18.3 of the Health Insurance Act, Revised Statutes of Ontario, 1990, Chapter H.6., as amended.

B E T W E E N:

LESLIE GOLDENBERG, MD Applicant (Respondent on the motion)

and

THE GENERAL MANAGER, ONTARIO HEALTH INSURANCE PLAN Respondent (Moving party on the motion)

Appearances:

For the Applicant: C. Jeffrey Freedlander, Counsel (Responding party) Jameel Madhany, Counsel

For the Respondent: Sonal Gandhi, Counsel (Moving party)

DECISIONS AND REASONS

I. DECISION

1It is the decision of the Physician Payment Review Board (“PPRB” or “Board”) to dismiss this motion.

2This decision relates to a motion brought by the General Manager of the Ontario Health Insurance Plan (“General Manager”) pursuant to Rule 10.01 of the PPRB Interim Rules of Practice and Procedure to have the PPRB rule upon its jurisdiction to hear this appeal.

II. BACKGROUND

3Dr. Goldenberg, the applicant in this proceeding and respondent on this motion, requested a hearing before the PPRB pursuant to s. 18(16) of the Health Insurance Act¹ (the “Act”), after receiving a decision from the General Manager demanding repayment from Dr. Goldenberg in relation to payments made for Fee Code Z-783 under the Schedule of Benefits for Physician Services made under the Act (“Schedule of Benefits” or “Schedule”).

4The General Manager brought a motion before the Board to dismiss the appeal on the basis that the Board does not have jurisdiction to hear the appeal. The General Manager takes the position that there are no records to support the claim made by Dr. Goldenberg, the decision at issue was made under s. 37.1(7) of the Act, and as a result the PPRB is without jurisdiction to hear the appeal. The General Manager argues that as a s. 37.1(7) decision, it would be subject to judicial review by the Divisional Court.

5Dr. Goldenberg’s position is that this appeal concerns the interpretation of Code Z-783, he has met the requirements for a hearing under s. 18 of the Act, and the PPRB has jurisdiction to hear the appeal.

III. JURISDICTION OF THE PPRB

6The PPRB is an administrative tribunal that derives its jurisdiction and powers from the Act. An administrative tribunal has no powers beyond those which are granted in its enabling statute. Section 3 of Schedule 1 of the Act reads as follows:

3. (1) When the Review Board receives a notice that requests a hearing under section 18, 18.2 or 40.3 of the Act and proof of service of the notice, the chair of the Review Board or, in his or her absence, a vice chair shall select a panel in accordance with section 6 to hear and determine the matter before it.

IV. ISSUE

7The issue before the Board on this motion is whether or not the Board has jurisdiction to hear the appeal under s. 18 of the Act.

V. RELEVANT LEGISLATIVE PROVISIONS

8The relevant subsections of s. 18 of the Act read as follows:

(2) The General Manager may refuse to pay for a service provided by a physician, practitioner or health facility or may pay a reduced amount in the following circumstances:

1. If the General Manager is of the opinion that all or part of the insured service was not in fact rendered.

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

3. For a service provided by a physician, if the General Manager is of the opinion, after consulting with a physician, that all or part of the service was not medically necessary.

4. For a service provided by a practitioner, if the General Manager is of the opinion, after consulting with a practitioner who is qualified to provide the same service, that all or part of the service was not therapeutically necessary.

5. For a service provided by a health facility, if the General Manager is of the opinion, after consulting with a physician or practitioner, that all or part of the service was not medically or therapeutically necessary.

6. If the General Manager is of the opinion that all or part of the service was not provided in accordance with accepted professional standards and practice.

7. In such other circumstances as may be prescribed.

(7) The General Manager may require a practitioner or health facility to reimburse the Plan for an amount paid for a service if, after the payment is made, the General Manager is of the opinion that a circumstance described in subsection (2) exists.

(14) Where the General Manager is of the initial opinion that a circumstance described in subsection (2) exists in respect of one or more claims paid for services provided by a physician, the General Manager may give the physician notice that,

(a) sets out a brief statement of the facts giving rise to the General Manager’s initial opinion as well as the General Manager’s interpretation of any of the provisions of the schedule of benefits relevant to the matter;

(b) advises that the General Manager is reviewing the physician’s claims and that the physician may, not later than 20 business days after receiving the notice, provide the General Manager, in writing with any information that he or she believes is relevant to determining whether a circumstance described in subsection (2) exists in respect of the claim or claims paid as submitted by the physician or an insured person for services provided by the physician; and

(c) advises that the physician may seek an opinion of the joint committee in accordance with clause 5(3)(a) unless the joint committee has already provided an opinion on the interpretation of those provisions.

(15) If, after reviewing the records and other information in his or her possession and any opinions received from the joint committee, the General Manager is of the opinion that a circumstance described in subsection (2) exists in respect of one or more claims paid for services provided by the physician, the General Manager may give a notice to the physician that,

(a) provides the physician with the General Manager’s reasons for his or her opinion; and

(b) notifies the physician that, unless the physician submits future claims for those services in accordance with the General Manager’s opinion, future claims may be referred to the Review Board and payments for those services may be subject to reimbursement in whole or in part after the date notice is given.

(16) The physician may, within 20 business days of receiving the notice under subsection (15), give a notice to the Review Board requesting it to hold a hearing with respect to the interpretation of any of the provisions of the schedule of benefits relevant to the matter.

9The General Manager relies on s. 37.1(7) in support of its position. That section reads as follows:

In the absence of a record described in subsection (1), (3) or (4), it is presumed that an insured service was provided and that the basic fee payable is nil.

VI. THE GENERAL MANAGER’S POSITION

10The General Manager argues that this is not a dispute under s. 18 of the Act as the General Manager has not provided the requisite notice under s. 18(15). The General Manager asserts that its decision was made under s. 37.1(7) of the Act and is therefore a matter subject to review only by the Divisional Court.

11At the hearing of the motion, the General Manager made a number of arguments in support of its position. Arguments included:

• Code Z-783 (Secondary Closure) requires active closure of a wound through a surgical procedure and Dr. Goldenberg’s records do not support the rendering of this procedure.
• The General Manager has written to the respondent on three occasions (February 5, 2010, August 3, 2010, and June 23, 2011) to alert Dr. Goldenberg that there was an absence of records to substantiate payment under the fee code. The final letter refers to s. 37.1(7) of the Act.
• The statutory intent of the Act supports the General Manager’s position that this matter falls within s. 37.1(7) of the Act (e.g., the General Manager argued in the absence of records to support a claim for payment, s. 37.1(7) provides a tool to recover payments already made, whereas s. 18 only applies to future claims for payment).

VII. DR. GOLDENBERG’S POSITION

12Dr. Goldenberg’s position is that the PPRB has jurisdiction to hear the appeal because the case is really about the interpretation of Code Z-783. Counsel argued that the dispute in question is exactly the type of issue the Board was designed to deal with.

13Arguments in support of Dr. Goldenberg’s position included:

• The essential character of this dispute is one of interpretation of Code Z-783, and not the absence of records under s. 37.1(7).
• By attempting to characterize this as a records issue, the General Manager is essentially circumventing Dr. Goldenberg’s right to a hearing.
• The substance of the General Manager’s letters referred to above constituted notice pursuant to ss. 18(14) and 18(15) of the Act.
• Dr. Goldenberg gave notice to the PPRB requesting that it hold a hearing within the timeframe set out in s. 18(16) of the Act.
• As the requirements of ss. 18(14), (15) and (16) of the Act have been met, Dr. Goldenberg has a right to a hearing and the PPRB must hear the appeal.

VIII. ANALYSIS

14The General Manager asserts that it did not give notice pursuant to s. 18. Indeed, its letters do not mention that they are sent as notices pursuant to s. 18. Further, the letter, dated June 23, 2011 specifically mentions s. 37.1(7). Notwithstanding this, however, in our view the letters, dated August 3, 2010 and June 23, 2011, contain wording that satisfies the notice provisions of ss.18(14) and (15). The letter of August 3, 2010 discusses the General Manager’s opinion regarding the interpretation of the fee codes, the Joint Committee’s opinion on the interpretation of the fee codes and requests a response from Dr. Goldenberg within 20 business days. The letter dated June 23, 2011, provided Dr. Goldenberg with the General Manager’s reasons for the opinion and notified Dr. Goldenberg of the treatment of future claims. As there is nothing in the Act that prescribes a particular form for notice under ss. 18(14) and (15), the substance of the letters is determinative of this issue. We find that the substance of these letters satisfies the notice provisions under s. 18 of the Act.

15The Supreme Court of Canada in Quebec (Attorney General) v. Quebec (Human Rights Tribunal)² held that in determining the jurisdiction of an administrative body to hear a matter, the essential character of the dispute before that administrative body must be examined. Having reviewed the General Manager’s correspondence to Dr. Goldenberg, as well as the motion materials and submissions made by the parties, in the Board’s view the essence of the dispute between Dr. Goldenberg and the General Manager concerns the interpretation of a fee code, and is not limited to an absence of records. The correspondence from the General Manager repeatedly refers to its opinion concerning the services that can properly be billed under the fee code in question. It is clear that the General Manager and Dr. Goldenberg disagree as to the nature of the services that can be billed under Code Z-783. These are issues that can be determined by the Board following a hearing.

IX. DECISION

16We find that the Board has jurisdiction to hear the appeal under s. 18 of the Act. As such, the PPRB has the jurisdiction to hear the matter. Accordingly, this motion is dismissed.

ISSUED February 6, 2013

« Vivek Rao»

Vivek Rao, MD

« Jacqueline Gumienny »

Jacqueline Gumienny

« Kevin Smith »

Kevin Smith, MD

Footnotes

1. 1RSO 1990 c. H.6, as amended.
2. 22004 SCC 40, 2004 2 SCR 223 at paras 15-19 (QL)