Physician Payment Review Board
File No. 14-PPR-0036
Present: Ross Male, MD, Chair Kevin Smith, MD, Vice-chair Naveed Mohammad, MD, Board Member Sandra R. Goldstein, Board Member
Heard: June 18th, 2015 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.
Between:
Vivek Rao, MD Applicant
and
The General Manager, Ontario Health Insurance Plan Respondent
Appearances: The Applicant: Vivek Rao, MD For the Respondent: Ms. Fatema Dada, Counsel
Decision and Reasons
I. Decision
1This decision relates to a motion brought by the General Manager of the Ontario Health Insurance Plan ("General Manager") pursuant to Rule 8 of the PPRB Rules of Practice and Procedure to have the Physician Payment and Review Board rule on its jurisdiction to hear this appeal.
2It is the decision of the Physician Payment and Review Board ("PPRB" or "Board") to dismiss this motion.
II. Background
3Dr. Rao., the applicant in this proceeding and the respondent on this motion, requested a hearing before the PPRB pursuant to s. 18 of the Health Insurance Act, R.S.O., 1990, c. H.6 (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.
4The 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.
5Dr. 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 PPRB has jurisdiction to hear appeals.
III. Jurisdiction of the PPRB
6The jurisdiction of the Board was previously considered and summarized by the Board in, Goldenberg v. Ontario (Health Insurance Plan), 2013 CanLii 69934 (ON PPRB) ("Goldenberg"). As outlined in Goldenberg, the 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 portions of s. 18 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:
- If the General Manager is of the opinion that all or part of the insured service was not in fact rendered.
- If the General Manager is of the opinion that the nature of the service is misrepresented, whether deliberately or inadvertently.
- 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.
- 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.
- 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.
- 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.
- In such other circumstances as may be prescribed.
(3) The General Manager shall refuse to pay for an insured service if the account for the service is not prepared in the required form, does not meet the prescribed requirements or is not submitted to him or her within the prescribed time. However, the General Manager may pay for the service if there are extenuating circumstances.
(4) Despite subsection (2), the General Manager may refuse to pay a physician for a service or pay a reduced service only if a circumstance described in subsection (2) that is also set out or described in the payment correction list exists in respect of the claim or claims, or if permitted to do so by the Review Board.
(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 a 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 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.
VI. The General Manager's Position
9The General Manager argues that under s. 18(3) of the Act, the General Manager shall refuse to pay for an insured service if the account for the service is not prepared in the required form, does not meet the prescribed requirements or is not submitted within the prescribed time. However, the General Manager may pay for the service if there are extenuating circumstances.
10The General Manager argues that Dr. Rao's claims were denied because they did not meet the prescribed requirements and timeframe requirements under s. 18(3) of the Act. While the General Manager agrees that Dr. Rao. submitted the claims within the prescribed timelines of six months from the date of service, and within the required form stipulated under the Act, the General Manager argues that Dr. Rao.'s failure to submit supporting operative notes and documentation within the six months timeframe did not meet the "prescribed requirements" and provided a basis to refuse the claims under s. 18(3) of the Act. The General Manager argued that Dr. Rao.'s claims were "stale dated" under s. 18(3) of the Act because they were incomplete as he failed to file the required additional information within the prescribed timelines.
11Further, the General Manager argues that no extenuating circumstances existed.
12The General Manager's position is that a physician is only able to seek review of a s. 18(3) decision under the Act by way of a judicial review before the Divisional Court.
13The General Manager also interprets the wording of "prescribed requirements" in s. 18(3) of the Act, and the overall payment terms of the Act, to include his or her ability to require a physician to submit any additional documentation and information requested by the General Manager within the prescribed timelines in order to qualify for payment of a claim. For example, the General Manager argued that if at any time within the six months from the date of service, he or she requests any documentation from a physician to support payment of the claim (e.g., operative notes, nursing notes, patient records), and the physician does not provide that documentation within the six months, the General Manager may deny the claim under s. 18(3) of the Act (assuming there are no extenuating circumstances).
14In response to questions from the Board panel, the General Manager did not cite any provisions under the Act or its regulations that state that submission of any documentation of the nature requested by the General Manager in this matter must be provided within the timelines prescribed by s. 18(3) of the Act for payment of a claim.
15The General Manager maintained that the Act and the Regulations read as a whole, and the government policy manual, available to physicians, support its overall position.
VII. Dr. Rao's Position
16Dr. Rao argues that he submitted the claims to the General Manager in compliance with the requirements under the Act and applicable Ontario Health Insurance Plan documents.
17In particular, Dr. Rao submitted that he filed the claims in the prescribed form and within the six month timeframe as required by s. 18(3) of the Act.
18Dr. Rao subsequently provided all the additional information in support of the claims that was requested by the General Manager. There is some dispute between the parties as to when this additional information was received by the General Manager. However, Dr. Rao. maintains that the date of receipt of this additional information is irrelevant based on his argument that submission of this information is not a requirement for payment under s.18(3), or a basis for refusal of payment under s. 18(3) of the Act. It is Dr. Rao's position that the claims should have been paid as they were submitted in compliance with all requirements under the Act.
19Dr. Rao argues that the PPRB has jurisdiction under s. 18(2) of the Act to hear an appeal in this matter. It is his position that given the claims were submitted to the General Manager in compliance with the prescribed requirements under the Act, the only applicable basis in the circumstances for the General Manager to consider the claims would be under s. 18(2) of the Act which provides a clear right of appeal to the PPRB.
VIII. Analysis
20The General Manager relies on his or her interpretation of s. 18(3) of the Act that the "prescribed requirements" for payment of claims include the submission of any documentation requested by the General Manager from the physician within six months from the date of service. There is a dispute between the parties as to whether Dr. Rao submitted all requested documentation in support of the claims within the applicable six month period. However, the General Manager maintains that Dr. Rao did not submit the documentation within the timelines and therefore, in the absence of any extenuating circumstances in this case, it had a basis to deny the claims under s. 18(3) of the Act. Given that a physician is only able to seek review of a s. 18(3) decision by application for judicial review before the Divisional Court, the General Manager maintains the Board has no jurisdiction to hear this appeal.
21As outlined in Goldenberg and based on the Supreme Court of Canada decision in, Quebec (Attorney General) v Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 SCR 223, in determining the Board's jurisdiction the essential character of the dispute before the Board must be examined. Having reviewed the submissions of the parties and the motion materials, in the Board's view the essence of the dispute between Dr. Rao and the General Manager concerns whether the General Manager appropriately interpreted the scope of "prescribed requirements" under s. 18(3) of the Act as a basis for refusing to pay the claims.
22In the event that the General Manager's interpretation of s. 18(3) and related provisions under the Act is not supported, then the issue is whether the General Manager had a basis under s. 18(2) or another provision of the Act to deny the claims. Based on the submissions of the parties, the Board finds that the basis for the refusal of the claims under the Act is not clear. For example, it is not clear whether the claims were properly refused under s. 18(3) of the Act, or whether the refusal falls more properly within s. 18(2) of the Act. If the supporting documentation requested by the General Manager is not a prescribed requirement and relates to the assessment of a claim on the bases outlined in s. 18(2) of the Act, that is a matter within the Board's jurisdiction. These are all issues that fall within the Board's jurisdiction and can be determined by the Board following a hearing.
IX. Decision
23The panel finds that the PPRB has jurisdiction to hear the appeal under s. 18 of the Act. Having found the Board has jurisdiction to hear the matter, this motion is dismissed.
ISSUED August 6, 2015.
Ross Male_________________________ Ross Male, MD, Chair
Kevin Smith________________________ Kevin Smith, MD, Vice-chair
Naveed Mohammad__________________ Naveed Mohammad, MD, Board Member
Sandra R. Goldstein__________________ Sandra R. Goldstein, Board Member