Vivek Rao, MD v. The General Manager, Ontario Health Insurance Plan, 2018 CanLII 12658

File No. 14-PPR-0036

PHYSICIAN PAYMENT REVIEW BOARD

PRESENT:

Ross Male, MD, Chair Lesley Barron, MD, Vice-chair Mark Voysey, MD, Board Member Marilyn Boltman, Board Member

Heard January 24th, 2018 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. Kristin Smith and Ms. Heather Burnett, Counsel

DECISION AND REASONS

I. OVERVIEW

1. This appeal was brought by the applicant, Dr. Vivek Rao, 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 for surgical procedures for five patients for services rendered between March 2013 to May 2013 (the “Claims”). The basis for the decision to deny payment was that Dr. Rao did not submit the Claims within the prescribed time and form as provided in s. 18(3) of the Act.

2. Dr. Rao seeks an order from the Physician Payment Review Board (“Board” or “PPRB”) that the Claims were improperly denied by the respondent (“OHIP” or “General Manager”) and should be paid in full.

3. For the reasons that follow, it is the decision of the Board to order that Dr. Rao resubmit the Claims with operating room notes to the General Manager for a determination under the Act as to whether the Claims qualify for payment. Dr. Rao is directed to resubmit the Claims and operating room notes within thirty days of the issuance date of this decision. The Claims are then to be processed and assessed by the General Manager in accordance with the provisions of the Act and Regulations, as if the Claims were submitted afresh.

II. PRELIMINARY MATTER

4. At the beginning of the hearing, the parties made submissions with respect to the order in which the parties would present the case to the Board. The applicant argued that he should be allowed to present his case first in order to provide the Board with the context in which the dispute arose and the history of the proceedings to date. The respondent argued that, because OHIP bears the onus of proof in this case, as established in the Board’s decision in Mayer v. Ontario (Health Insurance Plan),¹ the respondent should be permitted to present its case first.

5. After considering the submissions of the parties and the circumstances of this appeal, the Board decided to have the respondent present its case first.

III. EVIDENCE

6. The following background facts are based on oral and documentary evidence and are not in dispute except where indicated.

(i) OHIP’s denial of the Claims

7. Dr. Rao, requested a hearing before the PPRB pursuant to s. 18 of the Act, after the General Manager denied the Claims 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.

8. The parties agree that the Claims for payment were submitted by Dr. Rao to the Ministry of Health and Long-term Care of Ontario (“Ministry”) within one month of rendering the services, well within the six month deadline prescribed for the submission of physician accounts under section 2 of Ontario Regulation 22/02 made under the Act.

9. From 2012 to 2013, correspondence between Dr. Rao and Ministry representatives indicate that claims could take as long as three to four months from the date of submission to be processed by OHIP (i.e., to receive an initial response from OHIP as to whether additional information may be required to assess the claim). This evidence was uncontroverted by OHIP. At this time, it was his office’s practice to call the regional office of the Ministry responsible for processing Dr. Rao’s accounts on a quarterly basis to inquire as to the status of outstanding claims.

10. In addition, for some claims submitted by Dr. Rao the documentary evidence filed indicated that in 2012 to 2013 it could take longer than six months for Dr. Rao’s office to be contacted by the Ministry regarding any initial processing of his accounts. This is in contrast to the affidavit evidence of Ms. Melissa Di Vona, a Ministry Program Consultant in the Claims Services Branch of the Direct Services Division, in which she states that as of her sworn testimony on November 30, 2017, “…claims received by the 18th of a month will typically be processed for payment by the 15th of the following month”.

11. Dr. Rao often corresponded with his Ministry regional office on the status of his claims and the billing requirements of the Ministry. In particular, Dr. Rao wrote to the Ministry regional office on June 26, 2012 to inquire whether operating room notes were required for any claims that received an “AMS” error code from the Ministry (an internal Ministry error code, explained further in this decision). On June 27, 2012, Dr. Rao received an electronic mail reply from Ms. Glandy Luk (Claims Assessor, Claims Services Branch of the Direct Services Division of the Ministry) that with respect to the submission of operating reports “regarding the error codes, not to worry about AMS and AHB…”

12. In late December 2013, Dr. Rao’s office again contacted the regional Ministry OHIP processing office to request an update on the status of a number of claims submitted for payment. Included in this list of claims were the Claims that remained unpaid.

13. On January 3, 2014 the Ministry replied to Dr. Rao’s request and advised him to resubmit the Claims, with error codes “AMS” listed beside each claim (and the Ministry advised that it required operating room notes from Dr. Rao to further assess the Claims). Dr. Rao replied in electronic mail correspondence that the office error reports received from OHIP did not indicate that operating room notes were required to assess the Claims and that his practice was to do so only after he received an electronic mail request from his OHIP regional office contact, Ms. Luk.

14. Dr. Rao further testified and submitted evidence that in 2012 to 2013, based on the assurance from Ms. Luk, he did not understand that an AMS error code meant that he must submit operating room notes, or that the notes were required within six months from the date of service. Nevertheless, Dr. Rao’s office assistant, Ms. Yalini Vasanthan, indicated in correspondence to the Board that in 2013 she would have sent the operating room notes for the Claims to the Ministry by facsimile within six months from the date of service as a matter of practice. OHIP stated in its submissions that it did not receive facsimiles of the operating room notes and neither party had record of the facsimiles being sent. However, the affidavit from Ms. Di Vona of the Ministry states at paragraph 27 that it is possible that this documentation was provided but was simply not recorded due to the related claims not existing at this time within the Ministry’s systems.

15. In response to the Ministry’s January 3, 2014 correspondence, Dr. Rao stated that his office system’s error reports that were generated when the Claims were originally submitted had not indicated an “AMS” error code and that his understanding was that an “AMS” code simply meant that the claim was under medical review. Nonetheless, on January 6, 2014 Dr. Rao’s office resubmitted the Claims with operating room notes. At this time, OHIP advised that because the Claims were now resubmitted after six months from the date of service, they were denied on the basis of being stale dated under s.18(3) of the Act.

16. A physician can claim “extenuating circumstances” (e.g., factors beyond the physician’s control) as a defence to stale-dated claims. Based on documentation filed from Dr. Rao, he indicates that Ministry representatives advised him to try and make this claim as a potential way to receive payment for the Claims. On January 20, 2014 Dr. Rao made a claim for extenuating circumstances on the basis that his office billing software system did not indicate which claims had been rerouted by OHIP pending submission of operating room notes. As such, Dr. Rao requested that the Ministry consider his billing software as an extenuating circumstance and process the stale dated claims. He also indicated that for all future claims his office would automatically submit operating room notes to avoid stale dated claims in the future.

17. By letter dated January 29, 2014, the Ministry advised Dr. Rao that his request for payment of stale dated claims had been denied because the criteria for extenuating circumstances had not been met. Dr. Rao was provided 15 days to appeal the decision to the OHIP Eligibility Review Committee.

18. Dr. Rao pursued all internal review options within the Ministry. He was unsuccessful and the Committee denied payment of the Claims on March 18, 2014 on the basis they were stale dated and there were no extenuating circumstances.

(ii) Medical Claims Processing System

19. The parties, and in particular OHIP, provided substantial evidence to the Board on how physician accounts are processed by the Ministry. This evidence is set out as background for this hearing as it provides the central context for considering the nature of the General Manager’s decision regarding the Claims.

20. Based on affidavit evidence submitted by OHIP and its submissions, the most relevant aspects of the system for processing physician accounts are described as follows.

21. Physician accounts are electronically submitted from their office’s licensed billing software system to OHIP’s Medical Claims Processing System (“MCPS”). The MCPS is OHIP’s claims software system, which in general processes claims to one of two routes:

(i) Screening: depending on the nature of the claim and fee code used by the physician the claim may be: (i) automatically rejected (e.g., for such objective errors as missing or erroneous data like a wrong OHIP identification number or date of birth which is referred to as an “eligibility error” or a “validity error”), (ii) approved or (iii) an error report will be generated with an internal Ministry error code which indicates to OHIP that some form of further assessment of the claim may be required by an OHIP claims assessor and/or medical consultant. OHIP explained that all error codes with an “A”, such as the “AMS” error code for the Claims are referred to as “assessment codes”. A physician’s office billing software system should receive an OHIP error report indicating the applicable error code for each claim.

(ii) Assessment: if the claim is submitted to a claims assessor, after a review of the claim the claims assessor may, among other options: (i) independently determine the claim should be approved for payment without any further action required by the physician; (ii) deny the claim, or (iii) refer it to a medical consultant for further review or “reroute” the claim indicating that it needs to be resubmitted by the physician with additional supporting information from the physician. Supporting information can include such things as the operative report, clinic report, or diagnostic test results for the services in question.

22. OHIP explained that the Claims had been referred to a claims assessor who had re-routed them because of the determination that operating room notes were required to further asses the Claims. The affidavit evidence of Ms. Di Vona indicates that certain OHIP claims offices may have a policy to always require a certain kind of supporting documentation to assess claims that are rejected by a particular type of MCPS computer check. The Board was not provided with any evidence indicating what the different polices of the OHIP claims offices may be or how physicians would be made aware of these policies.

23. Any time a claim is not approved in the initial screening stage and is assigned an error code, the General Manager advised that it is deleted from the MCPS. For the two subsequent years, the General Manager still has a record that the claim was originally submitted through a copy of the MCPS generated error report, but it is no longer in queue for payment or consideration in MCPS. It must be resubmitted by the physician to address the error code and it is then considered afresh by OHIP. For example, the General Manager contends that upon receipt of the AMS code for the Claims, Dr. Rao should have known via the error reports received by his physician software program that he is required to resubmit all of the original information for the accounts with the addition of the operating room notes.

24. The General Manager advised, and it was undisputed that in this case, the use of the “AMS” code for the Claims is used in the MCPS for any claim involving multiple surgical procedures and indicates that more information is needed to assess the claims (e.g., operating room notes).

25. One of the Claims was rejected because of an objective eligibility error code. The other four passed through the screening stage and were assigned the AMS error code (and some had additional assessment codes to indicate such matters as the services were for overlapping visits or performed after midnight which results in a premium) and referred to a claims assessor. These Claims were rejected as it was determined the operating notes were required for the claims assessor to assess the Claims. According to OHIP, the Claims were rerouted to Dr. Rao for resubmission with the operating room notes. Dr. Rao denies receiving this information. OHIP then advised Dr. Rao that because he did not resubmit the Claims with the operating room notes within six months from the date of service, the Claims were stale dated.

IV. PROCEEDINGS BEFORE THE PPRB

26. Upon denial by the OHIP Eligibility Review Committee of the Claims in March 2014, Dr. Rao appealed the Ministry’s decision to the PPRB for a hearing. This resulted in various preliminary proceedings before the Board and Divisional Court which are summarized as follows:

PPRB Jurisdiction Motion

(i) OHIP brought a motion to quash the proceedings before the Board for lack of jurisdiction (the “Motion”). Among other things, OHIP argued that since the Claims were denied under s.18(3) of the Act, the Board did not have jurisdiction to hear the appeal, as the Board only has jurisdiction to hear matters that fall within s. 18(2) of the Act.

In the Board’s decision of April 6, 2015,² the Board found that it had jurisdiction to proceed with a hearing and denied OHIP’s motion to quash the proceedings for lack of jurisdiction. In summary, the Board found that based on the submissions of the parties, it was unclear as to whether the refusal properly fell within s. 18(2) or s. 18(3) of the Act. It determined that these are issues that fall within the Board’s jurisdiction and can only be determined by the Board following a hearing.

PPRB Reconsideration

(ii) Under Rule 15.6 of the Board’s Rules of Practice and Procedure, OHIP requested a Reconsideration by the Board of the Motion decision. By way of an Order of the Board dated October 14, 2015, the Board denied the request for reconsideration, finding, among other things, for the reasons outlined in the Reconsideration Decision that the Board had not made a material error in law such that it would have likely reached a different decision.

Divisional Court Judicial Review Application

(iii) OHIP brought a judicial review application to Divisional Court of the Board’s Motion and Reconsideration Decisions. In Ontario (Health Insurance Plan, General Manager) v. Rao, 2017 ONSC 5548, the Court dismissed the application as “premature” on the basis that before a court intervenes on the questions posed by the application, it is in the interests of justice that it be given the benefit of the Board’s full consideration of this issue. The Court cited with approval the Federal Court of Appeal in, C.B. Powell Ltd. v. Canada (Border Services Agency), 2010 FCA 61, 2010 FCJ No. 27 in which it found at para. 32 that:

…only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience (cites omitted)

The Court awarded costs of $15,000 to Dr. Rao.

27. Following dismissal of OHIP’s judicial review application, the Board resumed the pre-hearing proceedings for this hearing of Dr. Rao’s appeal.

V. ISSUES

28. The issues in this case are summarized as follows:

(i) What is the basis for the General Manager’s denial of the Claims? More specifically, were the Claims denied under s. 18(2) or 18(3) of the Act?

(ii) If the General Manager denied the Claims under s. 18(2) of the Act, were the Claims properly denied under s. 18(2)? If not, what is the appropriate remedy?

29. OHIP contended that a preliminary issue in this appeal is whether the Board has jurisdiction to consider the appeal. The Board finds that this issue was already determined in the Motion and judicial review application before Divisional Court, affirming the Board’s jurisdiction to consider this appeal.

VI. RELEVANT LEGISLATIVE PROVISIONS

30. For the purposes of this appeal, the relevant portions 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.

(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.

31. The Act also sets out the prescribed requirements for the submission of physician accounts. The Board, with the agreement of the parties, notes that the following requirements under the Act are the applicable provisions in this case.

32. The six month time limit for submitting physician accounts applicable in this case is outlined Section 2 of Ontario Regulation 22/02 made under the Act as follows:

33. A physician, practitioner, health facility or, in the case of a patient who is billed directly, the patient shall submit an account for an insured service to the General Manager no later than the following:

34. For insured services rendered in Ontario, no later than six months after the service is rendered. (emphasis added)

35. For insured services rendered outside Ontario,

i. no later than 12 months after the date of the patient’s discharge for services rendered to in-patients, and

ii. in all other cases, no later than 12 months after the service is rendered.

33. Additional prescribed bases for the General Manager to refuse to pay a physician’s account under s.18(2) paragraph 7 are outlined under s.38.0.1(1) of Regulation 552 under the HIA (“Regulation 552”) as follows:

38.0.1 (1) The following circumstances are prescribed for the purposes of paragraph 7 of subsection 18 (2) of the Act:

1. The General Manager is of the opinion that the account for the insured service has not been submitted in accordance with the Act and the regulations.

2. The General Manager is of the opinion that the fee code used by a physician or the amount claimed by a practitioner in the account submitted for payment is incorrect in the circumstances.

3. The General Manager is of the opinion that the insured service for which an account has been submitted was provided in circumstances in which no payment or a reduced payment is to be made, according to the Act, the regulations or the schedule of benefits.

4. The General Manager is of the opinion that the account submitted by a physician for payment includes two or more fee codes that reflect, in whole or in part, the provision of a single insured service rendered to an insured person in circumstances in which the service is more accurately described by only one fee code.

5. The General Manager is of the opinion that the account submitted by a practitioner for payment includes two or more claims that reflect, in whole or in part, the provision of a single insured service rendered to an insured person in circumstances in which the service is more accurately described by only one fee code.

6. The General Manager is of the opinion,

i. that an account submitted for payment by a physician includes a fee code for a service (the “billed service”) that is described in the schedule of benefits as an element of an insured service (the “insured service”), and

ii. that the insured service was rendered by another physician to the same person as the billed service was rendered and with respect to the same medical circumstances.

34. Finally, s.38.3 of Regulation 552 outlines various other requirements for the submission of accounts by physicians, including the requirement to do so by way of electronic data transfer and to ensure the account includes such requisite information as the patient’s OHIP identification number, the claimed fee code, the date of service, etc. There was no dispute between the parties that for the purposes of this appeal, submission of the Claims complied with the requirements of this section.

VII. POSITIONS OF THE PARTIES

(i) General Manager’s Position

35. The General Manager argues that if it denies a physician’s claim for payment under s. 18(3) of the Act, then the Board has no jurisdiction to “look behind” or determine the true basis of the decision. In this case, OHIP argues the Board is required to accept at face value the General Manager’s determination to deny the Claims under s. 18(3) of the Act.

36. The General Manager submits that the 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 in the required form stipulated under the Act, the General Manager argues that Dr. Rao’s failure to submit supporting operative notes within the six months timeframe did not meet the timelines for submission of accounts. The General Manager argued that the Claims were therefore “stale dated” under s. 18(3) of the Act because they were incomplete as he failed to file the required additional information within six months from the date of service (and no extenuating circumstances exist).

37. 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) and require the physician to resubmit the claims with the required supporting information within six months from the date of service.

38. The General Manager did not cite any provisions under the Act or regulations that state that the resubmission of claims and any documentation of the nature requested by the General Manager must be provided within the timelines prescribed by s. 18(3) of the Act for the submission of accounts. Rather, it was OHIP’s position that based on information in the Physician Resource Manual, which is available online for physicians as a practice guide, Dr. Rao should have known that he was required to resubmit the Claims with operating room notes within six months from the date of service.

39. The 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.

40. In the event that the Board determines it has jurisdiction under s.18(2) of the Act to review the Claims, the General Manager’s submits that the Board must find that there has not been any decision by the General Manager under s.18(2) of the Act regarding the Claims. It argues that at most the Board can decide that the Claims are not stale dated and therefore that the Claims must be resubmitted with the operating room notes and returned to the General Manager for an assessment under the Act. As such, the Board would have to refer the Claims back to the General Manager for a reassessment as to whether they qualify for payment under the Act.

(ii) Dr. Rao’s Position

41. What follows is a summary of Dr. Rao’s submissions that are relevant to this case.

42. Dr. Rao argues that he submitted the Claims to the General Manager in compliance with the requirements under the Act and all applicable Ontario Health Insurance Plan documents.

43. In 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. Dr. 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) of the Act, 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 fully assessed and paid as they were submitted in compliance with all requirements under the Act.

44. Dr. 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 deny the Claims would be under s. 18(2) of the Act which provides a clear right of appeal to the PPRB.

45. It is Dr. Rao’s position that the MCPS is an “arm of the General Manager”. In determining whether a claim is eligible for payment, denied or requires further assessment, Dr. Rao’s submits that the MCPS, on behalf of the GM, is exercising discretion and making a determination and assessment regarding physician accounts under the Act. For example, when a claim is referred to a claims assessor requiring the review of operating room notes, the General Manager is making a determination that there is a need to assess the claim on a basis identified under s. 18(2) of the Act.

46. In support of this position, Dr. Rao referred to Ms. Di Vona’s Response to Cross-Examination Questions on her affidavit. In it she states that when the Claims are referred to a claims assessor and they determine operative notes are required, this is done so that the Ministry can determine whether payment was authorized in accordance with the Act. The fact that the claims assessor made a determination is cited by Dr. Rao as evidence that the MCPS makes determinations and is not simply a data processing system.

47. Dr. Rao further submitted that even if operating room notes are required to process the Claims, it would be unfair for OHIP to require them to be provided within six months from the initial submission deadline. This would theoretically allow OHIP to ask for operating room notes at any time up and until 179 days from the initial submission of the claim; thereby potentially leaving the physician without the ability to perfect a claim within the six month period. This would result in a determination that the claims are stale dated, with no accompanying right of appeal to the Board. This interpretation would lead to nonsensical results. It would also defeat the intent of the Act and the design of the medical audit system which is structured to provide a fair, reproducible and transparent process. In his case, Dr.Rao submits that he would not have known the Claims were denied but for his inquiries to his local OHIP office.

48. Dr. Rao submits that the appropriate course of action for the General Manager would have been to approve the Claims and, if upon receipt of the operating room notes a claims assessor or medical consultant determines the Claims should not have been paid, then the physician would incur the appropriate deductions from his next remittance.

49. Dr. Rao asks the Board to find that the decision by the General Manager to refer the Claims to a claims assessor and require the submission of operating room notes is a decision under s. 18(2) of the Act to inappropriately deny the Claims. He asks he Board to order the General Manager to pay the Claims.

VIII. ANALYSIS

(i) What is the basis for the General Manager’s denial of the Claims? More specifically, were the Claims denied under s. 18(2) or 18(3) of the Act?

50. Consistent with the Board’s Motion decision, the Board rejects OHIP’s argument that the Board lacks jurisdiction to consider an appeal if the General Manager relies on s. 18(3) of the Act as the basis for denying payment of an account. If the circumstances of a case, such as this one, indicate that the basis for denial under the Act is unclear, then the Board has the jurisdiction to determine the basis upon which the decision was made. The Board is not interpreting the requirements under s. 18(3) as submitted by the Ministry, but rather reviewing the evidence and circumstances of a case to determine the basis for the General Manager’s decision under the Act.

51. If the evidence supports a finding that the General Manager made a decision under s. 18(3) of the Act, the Board agrees that it does not have jurisdiction to consider an appeal by a physician of this determination. However, if the evidence and circumstances demonstrate that the General Manager’s decision was made under another basis under the Act, and specifically relating to a consideration under s.18(2) of the Act, then the Board finds that it has the jurisdiction to consider the appeal. It is not enough for the General Manager to simply state that the decision is made under s. 18(3) and therefore the Board has no jurisdiction to review the matter. Such a position would negate a physician’s right of appeal to the Board and the intent and purpose of the Act.

52. The Board agrees with Dr. Rao that if, based on the evidence and circumstances of a dispute with OHIP, the basis for the General Manager’s refusal is unclear and the physician has exhausted all internal dispute routes within the Ministry, the Board should fulfil its role in determining whether it can assist in resolving the dispute within its mandate. This is consistent with the intent and purposes of the Act to ensure there is a fair and transparent medical audit and payment system.

53. OHIP agreed that Dr. Rao submitted the Claims in accordance with the prescribed requirements of s. 18(3) of the Act; that is he submitted the Claims with all the information and documentation required under the Act for the initial submission of the Claims. With the exception of one of the five Claims, the Claims were accepted on the eligibility and validity requirements under the Act. As outlined, a determination was made that the Claims required further assessment on the basis of the assessment “AMS” error code and with the aid of operating room notes. Based on the evidence, the Board finds that the General Manager made a determination respecting the Claims on a basis outside s.18(3); specifically, upon assignment of the “AMS” error code it was determined that further assessment was required relating to considerations under s.18(2) of the Act (e.g., services not rendered, standards for billing not met, etc.). This supports a finding that the General Manager had not completed its review of the Claims and it was therefore premature to deny them.

54. Overall the facts do not provide support for a finding that the basis for denial was a s. 18(3) determination that the Claims were stale dated; rather the Board finds that the General Manager’s assignment of the AMS error code and request for the operating notes demonstrates that its assessment of the Claims was not yet complete.

55. The Board finds that the act of assigning the AMS error code to the Claims and referring the Claims to a claims assessor to obtain the operating room notes constitutes an interim or temporary decision regarding the Claims, with the final decision pending receipt and consideration of additional information. That is, there is a form of decision indicating that the Claims require further assessment and information before a final decision on eligibility for payment under the Act can be made. The Claims were not refused or accepted under any bases under the Act. The assignment of an “assessment code” in contrast to the eligibility and validity codes indicates that some form of discretion or judgement must be applied to consider the claim for such factors as the nature or circumstances of the services performed.

56. The normal course for processing the Claims would have been that Dr. Rao would have perfected the submission of the Claims by submitting the operating room notes and potentially any other information reasonably requested by OHIP required to assess the Claims. This process could take longer than six months from the original submission of the Claims. There is no statutory or other requirement that claims must be fully processed and assessed for payment within six months of date of service. It is reasonable that the exchange between the parties of the information required to process a claim could take longer than six months, especially for complex procedures. To suggest that there is a requirement for all claims to be perfected within six months of the date of service is not supported by any requirement under the Act or regulations. This line of reasoning could lead to the absurd result that OHIP could request additional documentation to process a claim any time just before the expiry of the six month deadline, thereby negating any possibility that the physician could provide all information necessary to perfect the claim within the six month period.

57. OHIP submits that deadlines would be rendered meaningless if physicians were able to submit the required information for claims outside the six month deadline. The Board disagrees. Physicians are required under the Act to submit the initial threshold required information within six months of the date of service. There is an incentive for physicians to submit any additional supporting information and respond promptly to inquiries by OHIP to ensure prompt payment of their claims.

58. In its oral submissions, counsel for OHIP agreed that OHIP’s request for Dr. Rao’s operating room notes formed part of its process to assess the Claims. Counsel for OHIP explicitly recognized that OHIP’s request for operating room notes is not a prescribed requirement under s. 18(3) of the Act or the Regulations for the submission of physician accounts. The Board agrees.

59. The Board also agrees with OHIP that under the s. 37(2) of the Act, the General Manager has the authority to request additional information from a physician, including operating room notes, for the purpose of administering the Act. It was specifically acknowledged by OHIP in its submissions, and the Board also finds, that the provision of operating room notes is not a prescribed requirement under s. 18(3) or any other provision of the Act for the submission of an account. However, the Board does not agree with OHIP that there is authority under the Act for the General Manager to require the provision of additional information that is not prescribed under the Act within six months from the date of service, or to deny a claim on the basis that the additional information was not provided within six months from the date of service.

60. There is a structure to the MCPS processing of claims that applies in all circumstances. Namely, there are basic threshold requirements that must be fulfilled within six months of the date of service to a patient. However, if those threshold requirements are fulfilled a claim should not then be denied simply on a basis not covered under the Act.

61. The Act does not address or contemplate the timelines required for the “resubmission” of claims and perfecting all information required to process a resubmitted claim. This is understandable given that in many instances, especially for complex surgical procedures or claims, it may take far longer than six months to perfect submission of the claim and address OHIP’s inquiries regarding the claim. Section 2 of Ontario Regulation 22/02 clearly states that a physician must “submit an account” within six months of the date the service is rendered, with prescribed information. Neither this section nor any other section under the Act refers to or requires the “resubmission of accounts” within a specified time, with prescribed information.

62. The requirements for submission of accounts under the Act are designed to ensure that physicians submit their accounts within six months of the date of service with the required baseline information that OHIP needs to assess and verify the volume and type of claims potentially eligible for payment within the insurance plan. These requirements apply explicitly to the submission of claims; not the resubmission of claims.

63. OHIP argued that the Physician Resource Manual (the “Manual”) provides a basis for finding that physicians are required to perfect resubmitted claims within six months from the date of service. The Board agrees with OHIP’s counsel’s statements that the Manual has no statutory or binding authority; it is simply a guideline. The Manual cannot unilaterally amend the Act which uniquely governs the binding requirements for the submission of accounts. Nor can the Manual create binding requirements for the resubmission of accounts as a basis to deny claims, without any foundation for such requirements in the Act. There was no evidence provided on how the Manual is communicated to physicians or what knowledge Dr. Rao would have reasonably been expected to have of the Manual in 2013 when he submitted the Claims. In any event, the Board finds the information in the Manual on the terms for the resubmission of accounts is not binding or persuasive in this matter.

64. The parties agree that the OHIP error reports for the Claims did not state that Dr. Rao must resubmit the Claims with operating room notes. The evidence which was uncontroverted by OHIP indicates that Dr. Rao was advised by the Ministry in 2012 that he need not submit operating room notes for Claims with the AMS code. At this time, it was also his experience, as demonstrated by the evidence of his correspondence in 2012 to 2013 with the Ministry, that Dr. Rao’s claims were regularly processed as much as three to six months after initial submission. The evidence of Dr. Rao’s office assistant, Ms. Vasanthan, also indicates that Dr. Rao’s office sent the operating notes via facsimile within six months from submission of the Claims. The Board notes the substantial good faith, reasonable and diligent efforts of Dr. Rao and his office to address OHIP’s concerns and requests as soon as he understood the concerns.

65. Given all of the circumstances, we find that Dr. Rao did all that would be reasonably expected in the circumstances and under the Act for the submission of the Claims. It was not his experience at the time to interpret the actions of OHIP or communications from OHIP as indicating that the Claims had been deleted from MCPS and that in order to process the Claims he was required to resubmit the Claims with the operating room notes within six months from the date of service. The Board finds this interpretation is supported by the governing provisions in the Act.

66. Finally, Dr. Rao submitted that OHIP’s conduct demonstrates an intention to delay the processing of claims in support of a decision to deny claims for stale dated reasons. The Board did not find any evidence to support the contention that the General Manager intentionally engages in conduct that would support findings of stale dated claims. However, the Board was provided with evidence that delayed payment of claims by OHIP was a situation affecting many physicians until at least 2015.

67. In summary, the Board finds that the Claims were not stale dated and the General Manager denied the Claims on a basis not covered by s. 18(3) of the Act. With the assignment of the AMS error code to the Claims, an interim determination had been made by a claims assessor for the General Manager that the Claims needed to be resubmitted with operating room notes to further assess the nature of the Claims for considerations outlined under s. 18(2) of the Act (and there are no prescribed timelines under the Act for the resubmission of claims with additional information). Given that the General Manager had yet to formally make or communicate to Dr. Rao that it had made a decision relating to considerations under s. 18(2), OHIP argues there is no decision for the Board to review. We agree with OHIP’s submission that the General Manager has yet to make its final decision as to whether the Claims comply with s. 18(2) considerations.

(ii) If the General Manager denied the Claims under s. 18(2) of the Act, were the Claims properly denied under s.18(2)? If not, what is the appropriate remedy?

68. Given that the Board finds that the General Manager has yet to deny the Claims under considerations outlined in s. 18(2) of the Act, the Board need not determine whether the Claims were properly denied under s. 18(2).

IX. CONCLUSION AND ORDER

69. The powers of the Board are outlined under s. 11(1) of Schedule 1 to HIA which state that the Board may make any order that it considers appropriate, including the types of orders listed in s. 11(1) of Schedule 1.

70. Given our finding that the Claims are not stale dated and the General Manager has yet to make its final decision as to whether the Claims comply with s. 18(2) considerations, the Board orders Dr. Rao to resubmit the Claims with operating room notes to the General Manager for the General Manager to make a determination under the Act as to whether the Claims qualify for payment. Dr. Rao is directed to resubmit the Claims and operating room notes within thirty days of the issuance date of this decision. The Claims are then to be processed and assessed by the Ministry in accordance with the provisions of the Act and Regulations, as if the Claims were submitted afresh.

71. The Board finds that pursuant to s.11(8) of Schedule 1 under the Act, given the absence of a Notice of Opinion for the Claims from the General Manager as defined under the Act, the Board does not have the authority to order the payment of interest on any amounts deemed owing by the General Manager for the Claims.

X. COSTS

72. Following oral submissions at the hearing, the parties made written submissions to the Board with respect to Dr. Rao’s request that the Board award him costs in this matter.

73. Under Rule 14.7 of the Board’s Rules of Practice and Procedures, and under the Act, the Board has the authority to award costs. The Board finds that Dr. Rao has not established that OHIP acted unreasonably, frivolously, vexatiously or in bad faith in the course of the proceedings before the Board, within the considerations under Rule 14.7.5 or other relevant factors that govern cost awards. While the Board appreciates Dr. Rao’s frustration at the lengthy and costly nature of the Board and Divisional Court proceedings relating to this matter, as well as the personal sacrifice, perseverance and extensive efforts to advance his position regarding the Claims, the Board finds that OHIP’s conduct in these proceedings does not justify an award of costs under the Board’s Rules. Accordingly, the Board denies Dr. Rao’s request for costs in this matter.

ISSUED March 14, 2018.

Dr. Ross Male_________________________ Ross Male, MD, Chair

Dr. Lesley Barron______________________ Lesley Barron, MD, Vice-chair

Dr. Mark Voysey_______________________ Mark Voysey, MD, Board Member

Marilyn Boltman____________________ Marilyn Boltman, Board Member

Footnotes

1. 12013 CanLII 23291 (ON PPRB).
2. 2Rao v. Ontario (Health Insurance Plan), 2015 CanLII 47745 (ON PPRB)