File #14-PPR-0036
physician payment review board
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:
THE GENERAL MANAGER, ONTARIO HEALTH INSURANCE PLAN MOH Respondent
and
VIVEK RAO, MD Applicant
ORDER
I. OVERVIEW
In a motion brought by the Respondent for the Board to determine whether it has jurisdiction to hear Dr. Rao’s request for review of the General Manager’s decision to deny payment of services he rendered (the “Motion”), the Board issued a decision on August 6, 2015 in which it found that it had the jurisdiction to proceed with a hearing in this matter (the “Decision”). On August 26, 2015, the Respondent requested a review of the Decision and provided written submissions to the Board in support of the request for reconsideration.
On September 2, 2015, the Applicant forwarded reply written submissions to the Board.
The Respondent submitted that in considering the Motion, the Board made the following two reviewable errors of law that would have affected the outcome of the Decision:
(i) The Board failed to make a finding on the central issue before it; namely whether it had the jurisdiction to review the General Manager’s decision to deny payments to Dr. Rao for stale-dated claims under s.18(3) of the Health Insurance Act, R.S.O., 1990, c. H.6. (the “Act”); and
(ii) The Board made a material error of law in finding what it defined as the “essence of the dispute” between the parties, that is, “whether the General Manager appropriately interpreted the scope of the ‘prescribed requirements’ under s. 18(3) of the Act as a basis for refusing to pay the claims”.
- The Board has reviewed the party’s submissions and finds that it is not advisable to review the Decision. The request for reconsideration is denied.
II. RULE 15.6
- Rule 15.6 of the Board’s Rules of Practice and Procedure (the “Rules”) provides as follows regarding the Board’s powers on requests for reconsideration:
Power to reconsider a decision of the Board
15.6 The Board, on its own motion or at the request of a party to a proceeding, may reconsider any decision made by it and may confirm, amend or revoke it. The Board may do so at any time if it considers it advisable to do so.
III. THE DECISION UNDER REVIEW
The background set out here is a brief summary, provided to give context to the request for reconsideration, and is taken from the Decision.
Dr. Rao requested a hearing before the Board pursuant to s.18 of the Act after the General Manager denied five claims for payment of insured services on the basis that Dr. Rao did not submit the claims within the prescribed time and form as provided in s.18(3) of the Act.
The General Manager brought a motion before the Board to dismiss Dr. Rao’s appeal on the basis that the Board does not have jurisdiction to hear appeals from a decision made by the General Manager under s.18(3) of the Act. It is the General Manager’s position that a physician is only able to seek review of a s.18(3) decision by application for judicial review before the Divisional Court.
Dr. Rao maintains he met the prescribed timelines and form required under s. 18(3) of the Act for submission of the claims and therefore that the General Manager denied the claims on an alternative basis under s.18(2) of the Act for which the Board has jurisdiction to hear appeals.
IV. REASONS
The Respondent submits that in the absence of specific criteria under the Rules for a request for reconsideration to the Board, the Health Services and Appeal Review Board’s (the “HSARB”) Practice Direction on the criteria for the reconsideration of decisions can provide direction on what criteria the Board should use when deciding on whether to grant a request for reconsideration.
The Respondent further submits that “given that the PPRB’s Rules 15.6 and 15.7 are identical to the HSARB’s Rules 16.5 and 16.6 [it therefore follows that] it is appropriate on a request for reconsideration for the PPRB to consider the applicable factors set out in the HSARB’s Practice Direction”. In particular, the Respondent argues that the Board did not decide an issue that it was mandated to determine and that it made a material error of law such that it would likely have reached a different decision had it determined the issue correctly.
I agree that the issue before the Board in this request for reconsideration is whether the Board in the Decision made a material error in law such that it would likely have reached a different decision.
First, I find that the Board Decision did reflect a finding in respect to the Board’s jurisdiction. In paragraph 22 of the Decision, I understand the Board to have identified a lack of clarity in the General Manager’s justification for refusal of payment of the claims. The Board states in paragraph 22 of the Decision that “…the Board finds that the basis for the refusal of the claims under the Act is not clear”; namely, that it is unclear whether the General Manager properly relied on s.18(3) as a basis to refuse payment of the claims, or some other basis under s.18(2) of the Act. The Board explains that it is the lack of clarity on whether the General Manager’s refusal for payment correctly falls under s.18(3) that is a live issue within the Board’s jurisdiction under s.18(2) of the Act, and as such is properly before the Board to adjudicate.
Second, the Respondent submits that there was a material error in law in the Decision in that the Board found that the “essence of the dispute” between the parties, was “whether the General Manager appropriately interpreted the scope of the ‘prescribed requirements’ under s.18(3) of the Act as a basis for refusing to pay the claims”. It is my view that this is more closely an issue that relates to the merits of the request for appeal and not to a statutory impediment to the Board’s jurisdictional power of review. Once the Board found that under the Act the basis for the General Manager’s refusal to pay the claims was not clear, only a hearing on the merits on what the General Manager interpreted to be the scope of “prescribed requirements” under s.18(3) of the Act could resolve the central issue under the appeal (i.e., whether the refusal falls properly with s.18(2) or (3) of the Act).
The pivotal issue of this reconsideration rests on the Respondent’s assertion that the Board made a material error in law in assuming that it had the authority to decide on matters that fall within a denial of payment under s.18(3). In paragraphs 21 and 22 of the Decision, the Board sufficiently reasons that the determination to be made is if the requested information by the General Manager to support its refusal to pay the claims relates to the assessment of a claim on the bases outlined in s.18(2) or (3) of the Act.
In the matter before me, I find that there was not a material error in law in that the Board did render a decision in respect of its jurisdiction under s.18(2) of the Act to conduct a hearing in this matter.
In summary, I deny the request for reconsideration.
V. DECISION
For the reasons set out herein, I find that it would not be advisable to reconsider the Decision. Therefore this Board Orders:
The request for review is denied.
A panel of four members will conduct a hearing before the Board in this matter on the merits.
The panel for the hearing may include the members who comprised the panel for the Motion.
The hearing and any pre-hearing Case Conferences will be held on a date to be determined by the Registrar of the Board. These dates will be communicated to the parties in writing as soon as they are fixed.
DATED at Toronto this 14th day of October, 2015.
“Suzanne Craig”____
Suzanne Craig, Vice-Chair