Vivek Rao, MD v. The General Manager, Ontario Health Insurance Plan, 2016 CanLII 48151

File No. 15-PPR-0020

PHYSICAN PAYMENT REVIEW BOARD

PRESENT:

Dr. John Davidson, Designated Panel Chair Dr. Samir Gupta, MD, Member Dr. Robert Lane, MD, Member Ms. Marilyn Boltman, Member

Heard, May 9th, 2016 at Toronto, Ontario (by written hearing)

IN THE MATTER OF A REQUEST FOR HEARING under Section 18.3 of the Health Insurance Act, Revised Statues 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. Nikita Rathwell, Counsel

DECISION AND REASONS

I. DECISION

1. This matter was brought by the applicant, Dr. Vivek Rao, following receipt of notice under the Health Insurance Act (“HIA” or the “Act”) that the General Manager of the Ontario Health Insurance Plan (“OHIP”) was denying payment for the fee codes Z428 and/or E628 of the Schedule of Benefits for Physician Services under the HIA (“Schedule of Benefits”) submitted in relation to cardiac transplant surgery performed by Dr. Rao on two separate occasions in April and June of 2014.

2. The Applicant seeks an order from the Physician Payment Review Board (“Board”) that confirms his practice of billing fee codes Z428 and/or E628 in this circumstance.

3. The Respondent asks that the Board confirm OHIP’s opinion that the procedures performed by Dr. Rao are not payable under the terms of fee codes Z428 and E628 as extraction sheaths were not used and the procedure performed was an inherent component of a heart transplant procedure (and therefore not separately payable).

4. For the reasons that follow, the Board confirms the Applicant’s practice of billing fee codes Z428 and E628 for pacemaker lead extraction in the setting of cardiac transplantation as a separately billable procedure under the Schedule of Benefits.

II. PRELIMINARY MATTERS

5. In accordance with the Act and on consent of the parties, a written hearing was conducted by a panel comprising three physician members and one public member of the Board.

6. The panel determined that it would be of assistance to appoint a peer physician advisor in cardiac surgery as permitted under s. 5.1(11) of the Act, to provide advice in any area of technical or special knowledge required by the panel. Upon review of the qualifications of Dr. Charles Peniston and consent of the parties, the Board appointed Dr. Peniston as a peer physician advisor to the panel in this matter.

7. In the course of the hearing and following review of the evidence of the parties, the Board conducted a telephone interview with Dr. Peniston who addressed specific questions posed by members of the panel.

8. A written summary of Dr. Peniston’s comments was provided by the Board to the parties for comment, and the responses were considered in preparation of this decision.

III. BACKGROUND

9. The following background facts are not in dispute, unless otherwise noted. These facts are based on the documents filed at the hearing.

10. The Applicant, Dr. Vivek Rao, is a physician and a Fellow of the Royal College of Physicians and Surgeons of Canada practicing in Cardiovascular Surgery.

11. For two cases of orthoptic cardiac transplantation carried out in 2014, Dr. Rao submitted a series of fee codes to OHIP for payment of component procedures performed in the provision of the service. This appeal concerns the billing for orthoptic heart transplant performed on April 21, 2014. By way of a separate decision of the Board, the Board considered the second case of orthoptic cardiac transplantation performed on June 2, 2014.¹

12. The orthoptic cardiac transplantation procedure performed in April 2014 included the removal of an Implantable Cardioverter Defibrillator (ICD) and pacing leads. Following the operation, the applicant billed OHIP for numerous fee codes associated with the procedure. All fee codes were paid with the exception of Z428 relating to pacemaker lead extraction and E628 relating to each additional lead extraction.

13. The fee code submission was initially adjudicated internally by OHIP who determined that the fee codes Z428 and E628 were not payable. The primary reason provided by OHIP was that the fee codes were not payable because extraction sheaths were not used in the procedure to remove the pace maker leads.

14. The Applicant made a subsequent petition to OHIP to appeal the denied claim. OHIP upheld its original decision citing in its July 16, 2015 letter to the Applicant that it had determined that the fee codes Z428 and E628 were “…not payable for the surgery rendered”.

15. OHIP’s reasoning was primarily two-fold:

i) fee code Z428 was for specific procedures in which removal of pacemaker wires entails the use of extraction sheaths and/or other technologies; and

ii) the extraction of pacemaker leads from a recipient patient is an inherent component of a cardiac transplantation procedure and not separately payable.

16. The Applicant consequently requested a hearing to appeal this matter before the Board.

IV. ISSUE

17. The issue in this matter is whether the applicant should be able to claim the fee codes Z428 and E628 for the removal of pacemaker wires in the course of performing a cardiac transplantation operation, without the use of extraction sheaths. In determining this issue, the Board is asked to interpret fee code Z428 and decide whether it may be claimed as a basis for payment in the circumstances of this case.

V. THE LAW

A. Overview

18. In Ontario, health insurance is governed by the HIA and any regulations made under it. Section 12 of the HIA provides that every insured person is entitled to payment for insured services in the amounts prescribed in the regulations. Section 1 of the HIA defines the term “prescribed” as meaning “prescribed by the regulations.” To this end, s. 37.1(1) of Regulation 552 under the HIA states as follows:

37.1(1) A service rendered by a physician in Ontario is an insured service if it is referred to in the schedule of benefits and rendered in such circumstances or under such conditions as may be specified in the schedule of benefits.

19. Section 37.1 of Regulation 552 refers to the Schedule of Benefits, which prescribes the amounts payable for insured services rendered by physicians.

20. The Schedule of Benefits is a technical document that forms part of the statutory scheme for health insurance in Ontario. A physician is only entitled to claim an account for performance of a service represented by a specific fee code in the Schedule of Benefits, and only if he or she has performed all of the elements of the service, as set out in the Schedule of Benefits. Unless specifically prohibited, any eligible physician may bill OHIP for any service contained in the Schedule of Benefits and will be paid the prescribed fee, as long as the service was rendered in accordance with the HIA and its regulations.

21. The Schedule of Benefits is comprised of rules of general application to all listed services, rules of general application to subsets of listed services, and descriptions of individual listed services, typically grouped by medical specialty. Many listed services are further subject to specific limitations and conditions set out as part of the individual service description.

22. Subsection 18(1) of the HIA gives the General Manager of OHIP the authority to determine issues relating to accounts for insured services and to make payments authorized under the Act. Subsections 18(2) and 18(4) allow the General Manager of OHIP to refuse to pay for a service provided by a physician, or to pay a reduced amount in specified circumstances. Sub-section 18(2) of the Act reads as follows:

18(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.

Subsection 18(4) of the Act further reads:

18(4) Despite subsection (2), the General Manager may refuse to pay a physician for a service or pay a reduced amount for the 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 an order of the Review Board.

23. If the General Manager forms the initial opinion that one of the circumstances set out in sections 18(2) and 18 (4)of the HIA exists, then the General Manager may give the physician notice that the General Manager is reviewing the physician’s claims. If, after reviewing records and other information, the General Manager’s opinion remains that one of the circumstances set out in section 18 of the HIA exists, then the General Manager may give notice to 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 Board.

24. A physician who disagrees with the General Manager’s opinion may request that the Board hold a hearing with respect to the interpretation of the relevant provisions of the Schedule of Benefits. The Board holds hearings on payment matters that cannot be resolved between the General Manager and a physician through the provision of education and other assistance, and to provide for an appeal process of the General Manager’s decisions. Pursuant to section 18.3 of the HIA, the Board may determine all issues relating to payments for insured services and may make orders for payments from OHIP that are authorized by the HIA. The Board’s powers are set out in subsection 11(1) of Schedule 1 to the HIA.

B. Fee Codes at Issue

25. The relevant fee codes from the Schedule of Benefits in this case read as follows:

#Z428 Pacemaker lead extraction including the use of extraction sheaths with or without similar laser or laser technology ………………………………………………………… $598.50

#E628 each addition lead extraction ………………………...add $194.50²

VI. ANALYSIS

A. The Applicant’s Position

26. The Applicant asserts that it is appropriate to bill fee codes Z428 and E628 for that component of a cardiac transplant procedure in which previously implanted pacing wires are removed from the proximal veins of the patient. The Applicant made the following main arguments in support of his position.

i) His interpretation is consistent with the principles of statutory interpretation in that it is consistent with the description or wording of fee code Z428 and with the Schedule of Benefits as a whole.

ii) The clinical practice underlying his use of Z428 is consistent with the wording and meaning of the fee code in so far as there is no other code in the Schedule of Benefits available to physicians for the extraction of pacemaker wires, and the procedure as it is currently practiced is usually done without the use of extraction sheaths.

iii) The pacemaker lead extraction is not a standard component of a heart transplant procedure where the patient’s diseased heart is initially removed. It is a specific procedure performed in patients with pre-existing pacemaker leads that carries with it a specific potential risk in morbidity outside of that associated with a cardiac transplant procedure itself.

iv) In contrast to the wording used in other fee codes of the Schedule of Benefits, fee code Z428 does not contain express limitations that would preclude billing for the code in these circumstances.

v) That an ambiguity in the interpretation of the code should be resolved in the favor of the Applicant.

B. The Respondent’s Position

27. The Respondent submits that the Applicant has misinterpreted the nature of the service to be provided for the use of fee codes Z428 and E628. In support of its position, the Respondent provided the following key arguments:

i) Fee code Z428 is payable for the removal for pacemaker wires under specific circumstances and in particular when using specific technologies; i.e., extraction sheaths and/or laser or other technology.

ii) Removal of pacemaker wires without the use of extraction sheaths and/or other technology is inherent to the cardiectomy component of the transplant procedure and therefore not separately billable.

iii) its interpretation is consistent with the description and wording of the fee code and harmonious with the context in which it is in enacted, as well as the purpose and meaning of the Schedule of Benefits, within the statutory scheme governing payment to physicians.

C. DR. PENISTON’S EVIDENCE

28. Dr. Peniston’s qualifications and credentials in cardiac surgery for the appointment as a peer physician advisor to the panel to provide advice in any area of technical or special knowledge required by the panel under s. 5.1(11) of the Act was accepted by the Board and the parties.

29. During the hearing the panel conducted a telephone interview with Dr. Peniston who addressed specific questions posed by the members of the panel. His advice was subsequently confirmed in writing by Dr. Peniston and circulated to the parties for comment. Only the Respondent provided additional written comments which were reviewed by the Board.

30. The panel was impressed by Dr. Peniston’s unambiguous view that pacemaker wire extraction, regardless of the clinical setting or circumstance in which it is performed, is an ancillary procedure with specific risk and potential morbidity to the proximal venous anatomy of the chest. In the setting of cardiectomy for heart transplantation, morbidity associated with the removal of pacemaker wires is not to the diseased heart which is being removed but rather to the inominate and subclavian vessels through which they course and would otherwise remain behind.

31. It was Dr. Peniston’s clear advice, which he believes is also the view of his colleagues who routinely perform pacemaker lead extractions, that pacemaker lead extraction by any means can only be claimed for payment by physicians under fee code Z428 and is routinely remunerated by OHIP through payment of the fee code Z428.

32. Dr. Peniston further noted that fee code Z428 is the only code in the Schedule of Benefits for which such a procedure could be billed; there being no other codes available that could be appropriately substituted. It is his understanding that amongst his peers this code is widely used for removal of pacemaker wires irrespective of methodology.

D. STATUTORY INTERPRETATION

(i) General

33. The statutory interpretation of fee code Z428 in the circumstances of this case requires two levels of analysis. The first is an analysis of the wording of the fee code; and the second analyzes the fee code in the broader context of the Schedule of Benefits.

(ii) Analysis of Z428

34. Fee code Z428 provides payment to a physician for, in its words, “pacemaker lead extraction including the use of extraction sheaths with or without laser or similar technology”.

35. The Respondent argued that the code is only to be applied in specific circumstances using specific technology. The Respondent provided a history of the rationale for the creation and adoption of the fee code after application to the Central Tariff Committee in 2003. The Respondent submitted that the code was created for the specific purpose of replacing or repairing degraded or failed pacemaker leads which had become stuck in the heart due to fibrosis. However, the Respondent also stated that:

pacemaker leads….can form strong attachments to the wall of the blood vessels or heart chamber. Freeing leads that have become stuck…in this way requires considerable skill and experience and is considered a risky procedure.³

We note that the parties agree on this statement.

36. The specific indications for the application of the fee code are not explicitly outlined in the Schedule of Benefits. It is the Applicant’s contention, supported by Dr. Peniston, that Z428 is used by physicians for payment for removal of any pacemaker wires that are defective, damaged, infected or no longer indicated. The code does not stipulate the degree of complexity inherent in the procedure or a required methodology.

37. It is undisputed by the parties that there is only one code in the Schedule of Benefits for which removal of pacemaker leads is payable. Both the Applicant and Dr. Peniston are of the understanding that this code is uniformly applied irrespective of the complexity of the procedure or the methodology. The Respondent maintains that the code clearly provides that it is only payable if extraction sheaths are used and the leads are not extracted as a component of another procedure, such as heart transplant surgery.

38. The panel finds that the wording of fee code Z428 does not clearly provide that extraction sheaths must be used as a condition for payment. The evidence of the Applicant and advice of Dr. Peniston which was uncontroverted by OHIP, is that physicians routinely understand fee code Z428 to apply to pacemaker lead extraction, irrespective of methodology and that it is uniformly used by physicians on this basis. The panel finds this interpretation of the code consistent with its wording: i.e., there is no clear requirement in the wording of the code that extraction sheaths or any explicit methodology must be used for payment.

39. The panel noted the Applicant’s observation that the Respondent did not provide any expert or witness evidence to support its contention that pacemaker lead extraction is a standard component of recipient cardiectomy or to refute the contrary evidence of the Applicant and advice of Dr. Peniston on this issue. Upon review of the evidence, we find it persuasive that pacemaker lead extraction is an ancillary procedure to recipient cardiectomy based on, among other things, its independent risk to the patient and complexity of the procedure. As such, we find that pacemaker lead extraction performed in recipient cardiectomy is a separable billable procedure for which payment may be received under fee codes Z428 and E628.

Analysis of Z428 in the broader context of the Schedule of Benefits

40. The Board’s interpretation of fee code Z428 is also consistent within the broader context of the Schedule of Benefits as a whole.

41. As noted, a main contention of the Respondent is that the fee code Z428 requires the use of extraction sheaths. This position rests primarily on the use of the word “including” in the text of the fee code descriptor.

42. The Respondent argues that the word “including” in the fee code indicates that the use of the extraction sheaths is necessary for the code to be payable.

43. In regard to fee code Z428, the Respondent maintains that were the use of extraction sheaths considered optional, OHIP would have stipulated in the fee code description “may include” rather than “including”.

44. The Applicant’s response to the Respondent’s position is that the plain reading of the fee code Z428 does not support the Respondent’s interpretation. While the section on Definitions in the Schedule of Benefits defines the context of “may include” it does not do so for other uses or variations of the root “include”.

45. The panel notes that throughout the Schedule one sees differing variations in the use of the word “include” or part thereof. For example, the Schedule of Benefits uses such terms as “includes”, “to include”, “including”, “may include”, “must include” and “to include if necessary” all with various degrees of overlapping and exclusionary context.

46. The Board appreciates that as it relates to the word “including” in fee code Z428, the meaning on its own is ambiguous. We agree with the Respondent that the test to be applied in statutory interpretation in this context is that as outlined in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] SCJ No. 2 (at paragraph 21) which provides that we interpret fee code Z428 to ensure that, “…the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament.” Accordingly, we considered as follows the wording of fee code Z428 within the broader context and object of the Act and Schedule of Benefits.

47. The use of the term “including” throughout the Schedule of Benefits is also ambiguous. For example, the panel notes it is present in the descriptor of a number of fee codes (such as M018, E635, R795, Z338 and S318) where payment for the service is not necessarily contingent on the inclusion of all components expressed in the descriptor.

48. The wording of the fee code Z428 and Schedule of Benefits does not clearly support that the use of the word “including” has one general application to indicate that its use denotes a mandatory condition of payment. The panel finds that based on both an interpretation of the grammatical and ordinary sense of the wording of fee code Z428 and the overall use of the term “including” in the Schedule of Benefits, it is logical and common sense that the use of the word “including” does not mean that extraction sheaths are required to be used as a condition of payment. The Board also finds that this interpretation is consistent with the scheme and object of the Act and Schedule of Benefits which is to ensure, among other things, that physicians are paid for procedures duly performed. The narrow interpretation sought by the Respondent would not only leave the Applicant, but based on the evidence before the Board, many physicians without payment for pacemaker lead extraction duly performed in its varied circumstances and varying methodologies. The Board cannot conclude that the legislature intended that the fee code would have this meaning or application advanced by the Respondent.

49. Consequently, for all of the reasons provided, the panel finds it reasonable for a practitioner to understand the term “including” to be unrestrictive when applying fee code Z428 to a procedure involving the extraction of pacemaker wires.

VII. DECISION

50. The Board confirms the Applicant’s practice of billing fee codes Z428 and E628 for pacemaker lead extraction in the setting of cardiac transplantation as a separately billable procedure under the Schedule of Benefits.

51. Under subsection 11(1) of the Schedule 1 of the HIA, the Board orders that the Respondent make payment to the Applicant for claims for fee codes Z428 and E628 in accordance with the Act and regulations including any provisions of interest payable.

DATED July 29, 2016

Dr. John Davidson________________________

Dr. John Davidson, Designated Panel Chair

Dr. Samir Gupta__________________________

Dr. Samir Gupta, Member

Dr. Robert Lane__________________________

Dr. Robert Lane, Member

Marilyn Boltman__________________________

Ms. Marilyn Boltman, Member

Footnotes

1. 1See the Board’s decision in Rao v. OHIP (GM), dated July 29, 2016 (File No. 15-PPR-0022). The Board and parties agreed that the evidence and submissions relating to both cases would be heard together but the Board would provide separate decisions for each matter.
2. 2Schedule of Benefits: Physician Services under the Health Insurance Act (May 1, 2014) at p. Q4, R.R.O. 1990, Regulation 552.
3. 3Respondent’s Grounds of Response, Paragraph 25.