Background

On June 9, 2023, the Minister of Health posted draft regulations (the "Proposed Regulation") to the Integrated Community Health Services Centres Act, 2023 (the "New Act"). While the New Act came into force in May of this year, most of the key operative provisions will not come into effect until a later date (being the date named by proclamation of the Lieutenant Governor in Council). The New Act was detailed in our Bulletin, "Ontario's Your Health Act: Changes to the Legal Framework for Independent Health Facilities". However, in summary:

  • the Ontario government stated that one of the aims of Bill 60, Your Health Act ("Your Health Act") which the New Act formed part of, was to improve patient wait times and patient experience by expanding access to publicly funded, community based health services;1
  • the Your Health Act will repeal the current legislation governing privately owned independent health facilities ("IHFs") – namely, the Independent Health Facilities Act (the "IHFA") and enact the New Act in its place;
  • the New Act establishes a licensing regime for "integrated community health services centres" ("Community Health Centres"). Existing IHFs will automatically be licensed as "integrated community health services centres" ("Community Health Centres") under the New Act;2
  • like IHFs, Community Health Centres will be privately owned but publicly funded – in that they will perform publicly funded health procedures (i.e., health procedures paid for by the Ontario Health Insurance Plan ("OHIP")), such as diagnostic imaging, sleep medicine, dialysis, and gynecologic surgeries; and
  • in addition to funding received under the Schedule of Benefits - Physician Services Under the Health Insurance Act by way of payment of professional fees to physicians providing services in Community Health Centres, Community Health Centres may3 also receive funding by way of "facility costs" paid in accordance with the Schedule of Facility Fees for Independent Health Facilities or otherwise by the Ontario government.

The purpose of this Bulletin is to summarize some of the key terms of the Proposed Regulation. A subsequent bulletin will summarize the remaining key terms of the Proposed Regulation.

Selected Key Provisions of the Proposed Regulation

Health Facilities that are Not Community Health Centres

Section 2 of the New Act provides that it does not apply to any place, service, class of service, health facility, class of health facility, person or class of persons, that are prescribed by the regulations as being exempt from the New Act. The Proposed Regulation exempts numerous places, services, health facilities and persons from the application of the New Act and its regulations. The exemptions contained in the Proposed Regulation are similar to the exemptions found under the regulations to the IHFA (the "Current Regulations"), but some key distinctions do exist. By way of example:

Exempt Person Exempt Under Current Regulations? Exempt Under Proposed Regulation?

Certain health facilities including:

  • long-term care homes4
  • houses used as private hospitals5
  • psychiatric facilities6
 ✓ ✓*

A corporation that operates a public hospital7

 ✓

?* but the exemption extends only to an institution, building, premises or place that has been approved to be operated or used for the purposes of a Public Hospital and not the corporation that operates the Public Hospital8

Services provided by:

  • chiropodists;
  • chiropractors;
  • dentists;
  • optometrists;
  • osteopaths;
  • physiotherapists; or
  • podiatrists.9
 ✓

In part. The Proposed Regulation limits the exemption only to:

  • chiropodists;
  • dentists; and
  • optometrists,

who are members of the applicable regulatory college governing the profession. Notably, the condition of registration in Ontario is not present in the Current Regulation10

Services that would make the place in which it is provided a "laboratory" or "specimen collection centre" as defined in Sections 5 of the Laboratory and Specimen Collection Centre Licensing Actand are provided under a licence issued under that Act11

 ✓ ✓

In respect of those places marked with an asterisk (*) above, the Proposed Regulation specifically provides that where any part of such place is a health facility that is licensed under the New Act, the New Act and the regulations to the New Act will apply with respect to that part, and to the services provided in that part. By way of example, in respect of a building that has been approved to be operated or used for the purposes of a public hospital, if a licensed Community Health Centre operates from a floor of such building, that floor and the services provided by the Community Health Centre therein, are not exempt and are subject to the New Act and the Proposed Regulation (and any other regulations that may be made under the New Act).

Quality Assurance Advisors and Advisory Committees

Like the Current Regulations, the Proposed Regulation establishes requirements with respect to quality assurance. The requirements included in the Proposed Regulation with respect to quality assurance are almost identical to those set out in the Current Regulations. For example:

  • the licensee of the Community Health Centre must appoint a "quality assurance advisor" to advise it with respect to quality and safety standards of services provided in the Community Health Centre.12 Of note is the change in terminology to "quality assurance advisor", from the term "quality advisor" used in the IHFA and Current Regulations;
  • there is a requirement that the quality assurance advisor be a health professional who ordinarily provides insured services in or in connection with the Community Health Centre and whose training permits them to advise the licensee with respect to the quality and standards of services provided in the centre.13 As is the case under the Current Regulations with respect to the quality advisor, the Proposed Regulation requires the quality assurance advisor to be a physician if all of the insured services provided in the Community Health Centre are provided by physicians;14 and
  • the licensee of the Community Health Centre is required to appoint an advisory committee, the role of which is to advise the quality assurance advisor. The advisory committee must be comprised exclusively of health professionals who provide health services in or in connection with the Community Health Centre. Moreover, the licensee is required to use "best efforts" to ensure that the committee has representation from each: (i) health profession; (ii) speciality of medicine; and (iii) subspecialty of medicine, that is provided in or in connection with Community Health Centre.15

Complaints

Unlike the IHFA (which is silent in this regard), the New Act includes a requirement that licensees establish and maintain a process for patient complaints that complies with its regulations.16 In response, the Proposed Regulation includes a structured process for patient complaints that imposes broad requirements on licensees of Community Health Centres with respect to patient complaints:

  1. complaints must be investigated and, if possible, resolved, with a response provided to the complainant within 10 business days of the licensee's receipt of the complaint.17 If the complaint alleges harm or risk of harm to the patient, the licensee is required to commence an investigation "immediately";18
  2. a "complaint record" must be maintained, which includes (among other things), the date and nature of the complaint, actions required to resolve the complaint, and any follow-up actions that were taken. Licensees are required to review and analyze the complaint record at least quarterly for the purpose of detecting any "trends", and in doing so, the key principles of the "Patient, Family and Caregiver Declaration of Values"19 must be kept in mind. The results of the review and analysis must be considered as part of any determination of improvements to be made to the Community Health Centre;20
  3. an individual record for each complaint must be maintained for a period of 3 years,21 with such record being available for inspection in accordance with the New Act.22 A written record of each review of the complaint record must also be maintained; and23
  4. where a written complaint is made in respect of a matter that the licensee reports or reported to the Director as an "incident" under the New Act, the licensee is required to send to the Director: (i) a copy of the written complaint; and (ii) a written report documenting the licensee's response to the complainant.24

However, the above requirements in respect of the complaints record do not apply to complaints that are resolved by the licensee within 24 hours of the complaint being received.25

The New Act will also amend the Excellent Care for All Act, 2010 to confer authority on the Patient Ombudsman to investigate complaints in Community Health Centres. For this reason, as part of any response to a complainant (as contemplated by paragraph 1, above, for example), licensees are required to provide the complainant with the contact information for the Patient Ombudsman.26

Fees & Costs

As noted above, the proposed legal regime for Community Health Centres uses the term "facility costs" rather than "facility fees" (the latter of which is used in the IHFA and the Current Regulations).

In summary and at a very high level, facility costs are overhead costs incurred in the delivery of insured services, and which are paid for with fees received by Community Health Centres from the Ontario government. Community Health Centres that are entitled to receive "facility costs" will bill such costs to OHIP under the Schedule of Facility Fees for Independent Health Facilities (or otherwise to the government).27

While the terms "facility fee" and "facility cost" are defined similarly by the IHFA and the New Act, unlike the Current Regulations, the Proposed Regulation explicitly provides that the following constitute facility costs for the purpose of the New Act:

  • charge, fee or payment for the technical component of an insured service that is:
    • set out in a Schedule of Benefits;28 and
    • rendered in Ontario, outside of a hospital.29
    The Proposed Regulation defines "technical component of an insured service" to mean the part of an insured service for which a fee is payable by OHIP only if the service is rendered in a hospital.30 In summary, while it does so in a distinct way than does the Current Facility Fee Regulation, in effect, the Proposed Regulation causes those insured services that are generally only paid for by OHIP if they are rendered inside of hospitals, to be paid for by OHIP as "facility costs" (proposed) despite being rendered outside of a hospital in a Community Health Centre; and
  • a "charge, fee or payment for therapeutically necessary radiography ordered by a member of the College of Chiropractors of Ontario and rendered in an integrated community health services centre operated by a person licensed under the Act to provide radiography services is prescribed as a facility cost for the purposes of the Act" (but does not include the interpretation of the image).31

Notably, while a Community Health Centre may be entitled to bill and receive facility costs under the New Act, there is no absolute right to do so - as is the case in respect of IHFs under the IHFA. Under the current legal regime, there are IHFs that do not have funding attached to their licence, such that the IHF is not permitted to bill or receive facility fees. As the New Act states, all that IHF licences wills transitioned to Community Health Centre licences upon the New Act coming into force and will be subject to the same conditions and restrictions as they are under the IHFA. Those IHFs that are not currently permitted to bill or receive facility fees will likewise not – in their capacity as Community Health Centres - be entitled to bill or receive facility costs under the New Act. We expect, however, that Community Health Centres that are newly licensed under the New Act (i.e., not transitioned from the IHFA), will at least – in the short term – be entitled to facility costs.

Unlike one of the Current Regulations (namely, the "Facility Fees" Regulation), which includes a lengthy list of services and operating costs that are not considered facility fees, the Proposed Regulation simply states that charges, fees and payments for services that are not an insured service by virtue of the "Exclusions" section of the General Regulation to the Health Insurance Act are not facility costs. For example, in both cases: (i) services received wholly or partly for the production or completion of documents required for admission to an educational institution or program or obtaining employment; and (ii) treatments that are generally considered as "experimental" in Ontario, do not constitute facility fees/facility costs.32

As has been the case for IHF licensees since April 1, 2023, C-H-C-licensees will be required to submit claims for facility fees in respect of a service within three months of the date of service.33

A new requirement introduced by the Proposed Regulation is that Community Health Centre licensees post on their website and in the Community Health Centre itself: (i) a list of fees for any "uninsured services" (i.e., services that are not funded by OHIP) that are offered at the Community Health Centre; and (ii) the process by which the Community Health Centre will obtain consent to provide patients with any such uninsured services.34

As noted above in this bulletin, a subsequent bulletin will address the remaining provisions of the Proposed Regulation that we have identified as distinct from the Current Regulations or as otherwise significant, including, for example, those provisions that impose novel obligations on licensees with respect to the public positing of information. Moreover, the subsequent Bulletin will also speak to next steps as we transition towards the finalization of the new legal framework for Community Health Centres.

Footnotes

1. Ontario News Release, Ontario Reducing Wait Times for Publicly Funded Surgeries and Diagnostics (February 21, 2023).

2. Per Section 62(2) of the New Act, IHFs that convert to Community Health Centres upon the New Act coming into force will be subject to the same limitations and conditions on their Community Health Centre licence (under the Proposed Act) as they were in respect of their IHF licence (under the IHFA).

3. For additional information see below under the heading "Fees & Costs".

4. Licensed under the Fixing Long-Term Care Act, 2021. Section 1 of Regulation 649 to the IHFA (the "IHFA Exemption Regulation").

5. Licensed under the Private Hospitals Act. Section 1 of the IHFA Exemption Regulation.

6. Licensed under the Mental Health Act. Section 1 of the IHFA Exemption Regulation.

7. Being a hospital that is approved as a Public Hospital under the Public Hospitals Act. Section 2 of the IHFA Exemption Regulation.

8. Section 2(1)5 of the Proposed Regulation.

9. Section 4, IHFA Exemption Regulation.

10. Sections 4(a)-(c) of the Proposed Regulation.

11. Section 5 of the Proposed Regulation.

12. Section 7(1) of Proposed Regulation.

13. Section 7(3) of the Proposed Regulation.

14. For the purposes of this Section, the Proposed Regulation states that: an insured service supports a facility cost if the facility cost is for or in respect of a service or operating cost that supports, assists or is a necessary adjunct to the insured service.

15. Section 8(1), (2) and (4) of the Proposed Regulation.

16. Section 22 of the New Act.

17. Per Section 22(1)2. If a complaint cannot be resolved within this 10-business day period, the licensee must acknowledge receipt of the complaint and provide the patient with a date by which they may expect a resolution.

18. Section 22(1)1.

19. Which document will be posted on the Government of Ontario's website.

20. Section 22(3).

21. From the end of the complaints process.

22. Sections 24(1) and (2).

23. Section 22(3)(c).

24. Section 23(1).

25. Section 22(4).

26. Section 22(1)3.

27. Further information on the ability to bill facility costs is discussed below.

28. Being the Schedule of Benefits for Physician Services.

29. Section 31(1).

30. Section 31(2) of the Proposed Regulation.

31. Section 32.

32. See the "Facility Fees" Regulation to the IHFA and Section 24 of Regulation 552 to the Health Insurance Act.

33. Section 27.

34. Section 26(1)2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.