Tuesday 16 November 1993

Expenditure Control Plan Statute Law Amendment Act, 1993, Bill 50, Mrs Grier / Loi de 1993 modifiant des lois en ce qui concerne le Plan de contrôle des dépenses, projet de loi 50, Mme Grier

Subcommittee report


Chair / Président: Beer, Charles (York North/-Nord L)

*Vice-Chair / Vice-Président: Eddy, Ron (Brant-Haldimand L)

Carter, Jenny (Peterborough ND)

Cunningham, Dianne (London North/-Nord PC)

*Hope, Randy R. (Chatham-Kent ND)

Martin, Tony (Sault Ste Marie ND)

McGuinty, Dalton (Ottawa South/-Sud L)

*O'Connor, Larry (Durham-York ND)

*O'Neill, Yvonne (Ottawa-Rideau L)

*Owens, Stephen (Scarborough Centre ND)

*Rizzo, Tony (Oakwood ND)

*Wilson, Jim (Simcoe West/-Ouest PC)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Duignan, Noel (Halton North/-Nord ND) for Mr Owens

Frankford, Robert (Scarborough East/-Est ND) for Ms Carter

Sullivan, Barbara (Halton Centre L) for Mr McGuinty

Wessenger, Paul (Simcoe Centre ND) for Mr Martin

Also taking part / Autres participants et participantes:

Ministry of Health:

Wessenger, Paul, parliamentary assistant to the minister

Williams, Frank, deputy director, legal services

Clerk / Greffier: Arnott, Doug

Staff / Personnel: Schuh, Cornelia, deputy chief, Legislative Counsel Services

The committee met at 1554 in room 151.


Consideration of Bill 50, An Act to implement the Government's expenditure control plan and, in that connection, to amend the Health Insurance Act and the Hospital Labour Disputes Arbitration Act / Projet de loi 50, Loi visant à mettre en oeuvre le Plan de contrôle des dépenses du gouvernement et modifiant la Loi sur l'assurance-santé et la Loi sur l'arbitrage des conflits de travail dans les hôpitaux.

The Vice-Chair (Mr Ron Eddy): Good afternoon. The standing committee on social development is now in session on Bill 50, An Act to implement the Government's expenditure control plan and, in that connection, to amend the Health Insurance Act and the Hospital Labour Disputes Arbitration Act. We're in clause-by-clause consideration of the bill and Mr Wessenger had introduced a government amendment to subsection 2(3.3) of the bill. There had been some discussion. I understand discussion was almost concluded on that particular amendment. Further discussion at this time?

Mr Jim Wilson (Simcoe West): Sorry, Mr Chair, could you repeat that, please?

The Vice-Chair: An amendment by Mr Wessenger to amend subsection 2(3.3) of the bill was under discussion when the committee adjourned yesterday, I understand. The motion had been read and partially debated.

Mr Jim Wilson: What is the motion?

Mrs Barbara Sullivan (Halton Centre): This is the third-party services. I think we have basically concluded discussion on this section. Once again, I'll reiterate that in my view the amendment is premature because the homework hasn't been done, but none the less we're willing to go to a vote on it.

The Vice-Chair: Anyone else wish to speak to the matter? No. In that case, all in favour of the amendment presented? Carried.

The next is a Liberal amendment to subsection 2(3.1) of the bill.

Mrs Sullivan: I gather that the Conservative amendment is still to be stood down for the time being.

Mr Paul Wessenger (Simcoe Centre): Yes.

The Vice-Chair: Yes, that's recorded as being stood down and will be dealt with later in the meeting in effect.

Mrs Sullivan: I move that section 2 of the bill be amended by adding the following subsection:

"(3.1) The act is amended by adding the following sections:

"Duty to report

"43.1(1) A prescribed person who, in the course of his or her professional or official duties, has reasonable grounds to believe that another person has contravened section 43 shall promptly report the belief and the information on which it is based to the general manager.

"Subsection (1) prevails

"(2) Subsection (1) applies even if the information reported is confidential or privileged and despite any act, regulation or other law prohibiting disclosure of the information.

"Protection from liability

"(3) No proceeding for making a report under subsection (1), or for providing information in connection with the report, shall be commenced against a person unless he or she acts maliciously and without reasonable grounds for the belief.

"Exception: solicitor-client privilege

"(4) Nothing in this section abrogates any privilege that may exist between a solicitor and his or her client."

Mr Chairman, as you know, in the public hearing phase we had many interventions with respect to how an organization or a prescribed person would report what is basically the limited issue of health card fraud or when a person who is not an insured person attempts to receive an insured service. The original amendments which the government circulated to us would have allowed a prescribed person to report to the general manager of OHIP if a person were not a resident. That was clearly not acceptable. I think we did a fair canvass of the professions and facilities that appeared before us. They indicated that it would be impossible for them to make a judgement about the residency of a person, know what tests would have to be applied and so on. So clearly that test was not going to work.

What we were going back to in fact, in having this amendment in front of us at all, was the agreement with the OMA and the government that has specific sections included in it with respect to the reporting of health card fraud. The government has agreed to certain issues. I'd like to read, if I may, just a part of these discussions, what the Ontario Medical Association has agreed to:

"1. In exchange for one-time payment of claims under the J-8 rules, physicians will provide the Ministry of Health with the health number and other corroborating information about the cardholder (address, date of birth, name etc.) The mechanism for providing this information will be developed by the MOH-OMA joint working group."

Then the second section of that particular portion of the agreement relates to the physician actually picking up the card, the person surrendering the card to the physician. We have dealt with that in the previous section.

As you recall, when the committee had its public hearings, there was a considerable difference of opinion with respect to whether this reporting should be mandatory or whether the reporting should be voluntary. We heard testimony from the medical association and we heard testimony from the College of Physicians and Surgeons of Ontario. As we were doing our homework in this area, we looked at other tests that are applied in other acts, and the test that appeared to be most comparable was that of the Child and Family Services Act, which has a requirement for reporting based on reasonable grounds to believe that certain circumstances have occurred, in the case of that act that a child has been abused.


I frankly, and after discussion with my colleagues, have opted for the mandatory reporting, because I'm convinced by the arguments that were put forward and by those which appear to have worked and have been familiar to practitioners in other areas. I should also say that these were not taken lightly. I thought that many of the arguments the CPSO put forward with respect to the disciplinary action which could be taken against a physician who has perhaps an obligation and perhaps not an obligation to report were problematic. So that was one area I thought was a useful addition to our hearings.

You will recall that in the government's initial proposals there was another section, with respect to voluntary reporting, whereby either a person or a prescribed person or whatever, depending on what the final wording would be, could voluntarily report to the minister on any other matter affecting the administration of OHIP. That voluntary reporting section -- this is totally apart from the mandatory section at the beginning which was put forward by the government -- is one that I found deeply offensive and quite worrisome, because that section would override the Public Hospitals Act, the Mental Health Act, the freedom of information act and several other scenarios which may well be required by the colleges with respect to their own professions.

As a consequence, this amendment is drafted so that if we refer back to the Health Insurance Act, what we are really trying to root out here in every case, whether it's the patient or whether it's the professional or whether it's anyone else, is the identification of a person who, on reasonable grounds, another person believes is committing fraud or who is receiving services when that person is not an insured person.

As a consequence, the reference is made directly back to section 43 of the Health Insurance Act, which I have here somewhere, which basically documents who is entitled to services, who is an insured person, and provides that the fraud surround -- that's already in the act. The fraud surround is already here in section 43, if I can just read this:

"(1) No person shall knowingly obtain or attempt to obtain payment for or receive or attempt to receive the benefit of any insured service that the person is not entitled to obtain or receive under this act and the regulations.

"(2) No person shall knowingly aid or abet another person to obtain or attempt to obtain payment for or receive or attempt to receive the benefit of any insured service that such other person is not entitled to obtain or receive under this act and the regulations.

"(3) No person shall knowingly give false information in an application, return or statement made to the plan or to the general manager in respect of any matter under this act or the regulations."

The act spells out those offences already, so what we're saying is that for anyone who has reasonable grounds to believe in all of those circumstances that an offence has been committed or somebody has contravened that section, then that information should be reported.

In terms of the test of reasonable grounds, I have circulated documentation with respect to the test of legal grounds. You know I'm not a lawyer so I have to rely on people who have done the legal research. The legislative research service has provided a fairly good history of the meaning of the test of reasonable grounds to believe, and in my view it's a high test. The liability with respect to the reporting is covered in my amendment, and I recommend it to the committee.

Mr Jim Wilson: I appreciate Mrs Sullivan's comments with respect to this issue. However, I beg to disagree on some of the points contained in her argument. Members will note that they stood down the PC motion of yesterday which, rather than relying on a reasonable grounds test, introduces "has knowledge that an event referred to in subsection (2) has occurred shall promptly report the matter to the general manager."

After a lot of soul-searching and a great deal of compromise and good work on behalf of the OMA and the College of Physicians and Surgeons, I believe we have agreement that the PC motion that was stood down -- and I will have to change that motion slightly and re-read it into the record today. None the less, I think it is a better approach and that we have agreement from the parties. After all, if we don't have agreement from the parties with respect to this issue, we can't expect much enforcement after this law is passed.

I think it's important that the parties to the act feel comfortable. It's my understanding, unless I'm corrected by someone in the room here, that the OMA and the CPSO are more comfortable with the PC motion, and hence I will not be supporting the Liberal motion put forward by Mrs Sullivan.

Mr Wessenger: I'd just like to also indicate that I believe the PC motion is preferable to the Liberal motion, based on some of the comments made by Mr Wilson and also based on the fact that I think it's an interesting compromise having both the mandatory and voluntary reporting in the motion. The motion will also contain a defence provision which, in the event of not reporting immediately in certain circumstances, I think might be appropriate, something that has also been requested by the Ontario Medical Association in the sense of very unstable patients. I think it's a much better motion and for that reason will not be supporting the Liberal one but will be supporting the PC one.


The Vice-Chair: Any further discussion on the proposed amendment?

Mrs Sullivan: The Conservative amendment has not been presented yet. However, we understand that they are both going to have to be discussed before a vote is taken. I would like to hear more from the parliamentary assistant with respect to the override which is included in the Conservative motion. Under "Voluntary reporting," it says, "(4) A person may report to the general manager any matter...."

I suggest to you again that this is an override on the Public Hospitals Act, the Mental Health Act and the freedom of information act, and whether it's relating to the administration of this act or not, the only issues that can be reported now by professionals to OHIP are with respect to the services rendered and the cost of those services.

The public hospitals who appeared before this committee were very concerned and indicated in their testimony that they were concerned with this override. We did not have extensive hearings and we did not have people, by example, representing the psychiatric patients who are affected under the Mental Health Act, and other people affected under that act.

I think that this override is far more difficult to deal with than the issue of whether it's a reasonable-grounds test or whether it's a knowledge test. Frankly, I know the OMA wants the knowledge test; that's fine, but let's look at the voluntary reporting section. That is far more serious and has far more repercussions in terms of the health care system than whether a person reports with knowledge or on reasonable grounds to believe.

I respectfully submit to this committee that this bill is being written not only in the context of an agreement between the OMA and the government, but most of its sections affect providers and practitioners who are well beyond the scope of that agreement, and ultimately patients.

The Vice-Chair: Mr Wessenger, would you like to respond?

Mr Wessenger: Yes, I would like to respond. First of all, I think it should be clear that any information given to the general manager is covered by the freedom of information act, so that any of the information provided to the general manager will be subject to that act.

Secondly, the OMA has indicated that there would not be any reporting without this override. It was also indicated by the OMA that unless the override is there it would be considered professional misconduct under the RHPA if they didn't have the override provisions.

Mr Jim Wilson: I just want to correct my record. I had referred to the PC motion of yesterday as having been stood down. I understand it was deferred. I am looking for your direction, Mr Chairman, with respect to this motion. I guess the way the amendments were drafted, they're contained in different sections, so we're dealing with the Liberal motion first because the PC motion was deferred.

Mrs Sullivan: We deferred a different motion.

Mr Jim Wilson: No, we stood down a different motion.

The Vice-Chair: No.

Mr Jim Wilson: Maybe you want to correct me on this. I'm sorry; I was on my deathbed yesterday and I've been hauled off it to try and straighten this mess out.

The Vice-Chair: We appreciate your being here today, Mr Wilson. I believe the proposed PC amendment that was stood down was an amendment to 2(3.1) and sections 26.1 and 26.2, which will come up later. Are you speaking to PC amendment 2(3.2)?

Mr Jim Wilson: Yes.

Mrs Sullivan: Yes.

The Vice-Chair: My understanding is this will come up immediately after this.

Mr Jim Wilson: So your advice would be to deal with the motion on the floor now and then deal with the PC amendment.

My only thought on this was, regardless of when it was introduced or not introduced, Mrs Sullivan and I are referring to it, yet for the general public and for committee members it's not actually on the table or read into the record.

The Vice-Chair: Thank you for bringing that to our attention. You are right in that regard.

Any further discussion? If not, shall the proposed amendment to subsection 2(3.1) of the bill, section 43.1 of the Health Insurance Act, carry? The amendment is lost.

We'll proceed then to the PC proposed amendment to subsection 2(3.2).

Mr Jim Wilson: I move that section 2 of the bill be amended by adding the following subsection:

"(3.2) The act is amended by adding the following section:

"Mandatory reporting

"43.1(1) A prescribed person who, in the course of his or her professional or official duties, has knowledge that an event referred to in subsection (2) has occurred shall promptly report the matter to the general manager.


"(2) Subsection (1) applies to the following events:

"1. An ineligible person receives or attempts to receive an insured service as if he or she were an insured person.

"2. An ineligible person obtains or attempts to obtain reimbursement by the plan for money paid for an insured service as if he or she were an insured person.

"3. An ineligible person, in an application, return or statement made to the plan or the general manager, gives false information about his or her residency.

"Definition, `ineligible person'

"(3) In subsection (2), `ineligible person' means a person who is neither an insured person nor entitled to become one.


"(4) It is a defence to a proceeding for failure to make a report required by subsection (1) that the prescribed person delayed making the report because he or she believed on reasonable grounds that making the report might be a direct and immediate cause of serious bodily harm to a person and made the report as soon as he or she was of the opinion that the danger no longer existed.

"Voluntary reporting"

I'm going to add a word here in my reading of the amendment.

"(5) A prescribed person may report to the general manager any matter relating to the administration or enforcement of this act or the regulations.

"Subsections (1) and (5) prevail

"(6) Subsections (1) and (5) apply even if the information reported is confidential or privileged and despite any act, regulation or other law prohibiting disclosure of the information.

"Protection from liability

"(7) No proceeding for making a report under subsection (1) or (5) or for providing information in connection with the report shall be commenced against a person unless he or she acts maliciously and the information on which the report is based is not true.

"Exception: solicitor-client privilege

"(8) Nothing in this section abrogates any privilege that may exist between a solicitor and his or her client."

As I expressed earlier, this is a compromise amendment. I believe we have agreement from the Ontario Medical Association and the College of Physicians and Surgeons. It has incorporated, I think in a rather ingenious way, both mandatory reporting and voluntary reporting.

I would again ask the government and perhaps legal counsel to clarify for the record subsection (5) here, which deals with voluntary reporting. Certainly my reading of this amendment would in no way provide the override that Mrs Sullivan discussed in her previous comments.

Certainly the intent of both the mandatory and voluntary reporting cannot be missed, and that is that we had a very flawed health card system introduced by the previous government, and I appreciate the mea culpa with respect to this matter. But both the mandatory and voluntary provisions of this amendment would ensure that all parties with respect to health cards understand what their responsibilities are and also what their rights are. I think we need a zero tolerance approach towards fraud and this amendment is, I think, the best approach that we're able to come up with at this time.

Having said that, I'm not totally thrilled with the overall bill itself and will vote accordingly. However, I would ask for the support of the committee members with respect to this motion.


The Vice-Chair: Thank you. Further discussion? Mrs Sullivan, please.

Mrs Sullivan: In this discussion, I want to go back to section 43 of the Health Insurance Act. Two subsections of section 43 relate to patients who are obtaining services for which they are not insured.

The first relates to persons who "knowingly obtain or attempt to obtain payment" or services when they are not entitled to those services.

The second relates to persons who help another person to fraudulently receive health care services. Those are offences under the act.

The offences that are included in terms of this amendment under subsections (1) and (2) in fact reflect the offences that are now included in the act.

Under subsection (3), however, there is a totally different interpretation of an offence. Under subsection (3) of the act it says, "No person shall knowingly give false information in an application, return or statement made to the plan or to the general manager in respect of any matter under this act or the regulations."

That section is particularly included in the Health Insurance Act to deal with those instances of professional fraud where they occur: the physician or other person who bills the plan for services which did not take place, billing for services which were medically unnecessary etc, and there are other places in the Health Insurance Act in those circumstances where the general manager can act.

In this draft of this bill, what we are saying is that it's an ineligible person who makes a false statement in an application. What happened to the professional fraud? All of a sudden all of the fraud, by implication, that occurs in this system -- and in my view, we don't know how much fraud exists. I think that we've had one sloppy report from the Ministry of Health and that's about it; the rest is mostly anecdotal. The offences in this particular draft amendment do not match the existing act.

Secondly, under the voluntary reporting, I suggest to you that the test which is given for professionals and practitioners and their agents to report when they have knowledge of fraud is quite different than the test which is now being asked of people who may well know where there is professional or other fraud of that nature. In other words, you must have knowledge and you must report if you are a professional or a professional's agent with respect to a person who is ineligible.

However, the reverse circumstance doesn't take place. If you have knowledge of a professional fraud or fraud by an agent, you don't have to report; you "may" report. So you've got one standard of reporting in one circumstance and a totally different standard of reporting in another circumstance. I suggest to you that you've defeated the wrong amendment.

Mr Wessenger: I'd just like to reply. The purpose of this section really is only to deal with health card fraud and not to deal with other types of fraud, for instance, particularly with respect to the health provider.

First of all, I would suggest that any providers involved in fraud would be subject to a criminal offence anyway if they were in fact doing such an act.

Mrs Sullivan: It's a criminal offence under the act anyhow, for a person.

Mr Wessenger: That's right; it is an offence. But I would think the appropriate place to deal with this would be under the regulations in the Regulated Health Professions Act under the whole question of professional misconduct. To my way of thinking, that would be the appropriate way to deal with behaviour that is illegal.

Mrs Sullivan: Then might I ask why the voluntary reporting provision is in this amendment?

Mr Jim Wilson: Might I respond to that, Mr Chairman? Members have to keep in mind that when I read the amendment into the record -- we're talking about a prescribed person so I don't think we have just anybody running around reporting to the general manager. I think that's an important point.

Secondly, I think it's an onus on legislators to ensure that the public has some protection with respect to this matter, ie, it's a two-way street. It may be that physicians encounter fraud from members of the public, and it may be that other prescribed persons know of fraud occurring perhaps by physicians. Let's be real; it's a two-way street here.

If I were the government I would want this voluntary reporting provision included in this legislation. I think what it does then is if a prescribed person -- it says, "may report to the general manager any matter relating to the administration or enforcement of this act or the regulations," and do so voluntarily. It's less draconian in a voluntary manner. We don't want to discourage people from reporting fraud. At the same time, if they do, we want to ensure that they're protected from liability so that there isn't a barrier to reporting.

I wish it were a perfect world and I wish we didn't have fraud occurring, but we know that it's several hundred million dollars' worth of fraud, at least potential fraud, in the system, and we as legislators have a responsibility to crack down on this as best we can and in the most humane way we can. I think that's what this amendment attempts to do.

Mrs Sullivan: Could I then ask the third party critic why the offence that is delineated in this amendment is different from the offences which are delineated in the current act?

Mr Jim Wilson: I'm going to sound a bit like Mr Wessenger with respect to my answers, but as I said, it's not a perfect world. I think it's the best we're going to do. If Mrs Sullivan wants to take a recess and try and hash this out with the groups that are most affected, fine. I will tell you, at the end of the day, you will come up with this wording.

The Vice-Chair: Any other discussion? If not, a vote on Mr Wilson's motion. All in favour? Opposed? Carried.

Next is a government motion, an amendment to subsection 2(3.4) of the bill.

Mr Wessenger: Is this dealing with the same matter, mandatory reporting? If it's section 43.1, I would ask that it be withdrawn.

The Vice-Chair: Withdrawn? Agreed. Mr Wilson.

Mr Jim Wilson: I believe we're about to deal with the PC motion that was stood down yesterday, subsection 2(3.1).

The Vice-Chair: No. It's my understanding it will be dealt with at the end of the motions that were recorded.

Mr Wessenger: Mr Chair, I think we should deal with it first, because otherwise motion 45.1 would be out of order. So we should deal with the stood-down motion now, at this stage.

The Vice-Chair: Do members of the committee agree then that we will deal with the PC motion that was presented yesterday by Ms Cunningham and stood down? Agreed.

Mr Wessenger: I wonder if Mr Wilson might wish to stand down his further until we deal with the government motion dealing with the same section.

Mr Jim Wilson: Agreed.

The Vice-Chair: Does the committee agree? Thank you.


Mr Wessenger: I move that section 2 of the bill be amended by adding the following subsection:

"(3.2.1) The act is amended by adding the following section:

"Agreement with OMA re payments

"26.1(1) Despite anything else in this act, if an agreement between Her Majesty in right of Ontario, or the minister, and the Ontario Medical Association so provides, the general manager shall,

"(a) decrease, by an amount determined in accordance with the regulations, the amount of a payment that would otherwise be made by the plan to a physician or other person for insured services rendered in Ontario by a physician;

"(b) make a payment to a physician, in an amount determined in accordance with the regulations, whether the physician submits accounts directly to the plan under section 15 or not; and

"(c) increase, by an amount determined in accordance with the regulations, a payment to a physician, whether the physician submits accounts directly to the plan under section 15 or not.

"Health Care Accessibility Act

"(2) If a payment decreased under clause (1)(a) was wholly or partly for an insured service rendered by a physician who does not submit accounts directly to the plan under section 15, for the purposes of the Health Care Accessibility Act the amount payable under the plan for the service shall be deemed to have been reduced by an amount determined in accordance with the regulations.

"Other agreements

"(3) If an agreement between Her Majesty in right of Ontario, or the minister, and a prescribed association or other entity representing practitioners or health facilities so provides, subsections (1) and (2), clauses 45(1.1)(k) and (l) and subsections 45(6) and (7) apply, with necessary modifications, with respect to the practitioners or health facilities."

The purpose of this amendment is to provide greater flexibility with respect to the manner in which payments are made to physicians in accordance with any agreement that may be made between the minister and the Ontario Medical Association in future.

Mr Jim Wilson: I appreciate the parliamentary assistant's brief comment and I would ask a question. Perhaps it's a clarification of what was raised in the House yesterday by the leader of the Ontario PC Party, Mike Harris, and of course contained in the media over the last few days. That's how physicians are dealing with the social contract imposed on them by the government. It worries me to read the OMA press release and subsequent media reports in which it's contended that there will be some nine days taken off each of the next three years by physicians, ie, there will be days where physicians will not be providing services to their patients.

I would ask the parliamentary assistant to update the committee with respect to this matter.

Mr Wessenger: I think it's fair to say that this provision is not in any way put forward to deal with that particular suggestion with respect to the proposal put forward by the OMA; it's really to deal with the matter of whether there are any proposals put forward for differential payments. We expect there may be. There may be different classes of physicians who the OMA may decide should be dealt with differently than other classes of physicians, and I'm assured that will probably be dealt with by the joint management committee in any future negotiations.

Mr Jim Wilson: I raise the matter at this point because in my opinion it does deal in a general way with this section. That is, the government motion, as does the PC motion that's been stood down, does allow for flexibility in payments. To me, that allows for flexibility in meeting social contract obligations. It worries me, although obviously the wording of this particular amendment doesn't talk about days off or provisions of the social contract. I would like that cleared up.

Mr Wessenger: I think it should be made very clear that nothing would be done without the agreement between both the government and the OMA with respect to the matter of how payments are dealt with. That requires agreement on both sides. I can assure you that the government would not do anything that would compromise the delivery of medical care in the province of Ontario.

Mr Jim Wilson: I want to say for the record that I agree with the government's motion. I think it's similar to the motion that was put forward by my colleague Mrs Cunningham yesterday. I give credit to my party, I suppose, for flagging this issue for the committee and I'm glad to see the government has responded.

I would ask the parliamentary assistant, because I don't want to leave the topic without clearing the air a little bit, with respect to social contract obligations, payments to physicians, it's my understanding that with this amendment the OMA would no longer be tied into simply a 4.8% cut across the board and that this amendment would allow greater flexibility in future negotiations.

Mr Wessenger: I think it's basically to say that unless there's an agreement, the 4.8% cut across the board would apply. It would require the agreement of the government and the OMA to modify that position.

Mr Jim Wilson: I appreciate and expected that response. Therefore, I would ask you, what time frame are you looking at with respect to agreement in this area between the government and the OMA given that it's my understanding you've missed just about every other time line that was suggested in the interim economic agreement between the government and the OMA?

Mr Wessenger: Perhaps to clarify this, I don't really see this as something of an immediate time frame situation. I see this as something that can apply well into the future and several years down the road. As circumstances change with respect to the delivery of medical care in the province of Ontario, there may be new arrangements that have to be negotiated, and this legislation provides the flexibility for making those new arrangements.

I don't see this amendment as particularly with respect to the aspect of the social contract but as a longer-term approach to give the government the flexibility to deal with differing payment mechanisms than it now has. In other words, we're limited at the moment to a fairly crude measure of dealing with payments to physicians, and if we continue down the road of other agreements with other health professions, as well as future agreements with the OMA, this will provide that flexibility in entering into those agreements.

Mr Jim Wilson: To follow up on this, I think it is important that we again try to clear the air. I'm giving the government ample opportunity here in a very peaceful fashion to alleviate some of the concerns of the public with respect to what's been in the media recently; that is, the social contract or Rae days that physicians may take off and not provide services on. Physicians feel they're in a bit of a box with respect to this issue. The only time I have to discuss it with respect to this bill, I think, is most appropriate with this amendment. What options are being currently reviewed between the government and the OMA with respect to the social contract or the 1993 interim economic agreement?

Mr Wessenger: As far as I know, I don't think that really we've had any negotiations on this particular aspect at this time. This was seen by the minister as a way of providing for flexibility within the legislation. If you're asking with respect to the particular issue of the days off, I don't think that proposal is a particular one that is likely to be implemented. I think that's all I can say.

Mr Randy R. Hope (Chatham-Kent): I wasn't going to embark on this conversation, but the same people who have spent millions of dollars campaigning against this government, saying we're going to destroy the health care system, are talking about every doctor taking nine days off at the same time. I wasn't going to embark on this conversation until it was brought up. I find it very ironic that the same people who campaigned and spent millions of dollars against this government around the social contract have the audacity to put across nine days, saying they all want to take the days off.

I hope the minister would never ever consider that, because there are a lot of people in this world today who are working under a social contract who are not taking days off and who are directly affected by a wage reduction. For the medical profession to publicly state taking those days off altogether, I find that very ironic, especially in the depths of the campaign it levelled against the government about trying to destroy the health care system and then counteracting that with those days off. I just hope the minister never ever considers that because this member won't accept that as a term of reference for the citizens I represent.


Mrs Sullivan: I think we should look at why this amendment is here. It's here because the government, under the expenditure control plan, has asked physicians to reduce the cost of their services by $275 million and, under the social contract, to reduce the cost of their services by $200 million.

The framework agreement which was introduced in 1991 brought in thresholds, and there was an agreement that those thresholds would be applied at certain levels of physician income. It appears that there was no legislative authority for those thresholds to exist. Now we are further down the road and a new kind of threshold is being looked at involving a new pressure, and that new pressure is the expenditure cuts and the social contract.

What the OMA has had to do is to balance how the new pressure can be implemented, given the surround of the agreement it signed with the government. The OMA put forward several options to its membership in various regional and other ways and discussions were held across the province. It appeared that for many of those options there was not the legislative authority for implementation, and that's why this amendment is here.

During our public hearings we talked about, and in fact I can recall asking questions with respect to how, if there were certain steps taken to ensure that the 4.8% clawback was implemented, there would not be a kind of arbitrary stance about where one started in terms of being judged.

The female doctor who has taken time off her practice and therefore hasn't billed while she's having a baby and taking some time in a new family situation is one example. Physicians who have been practising in a locum situation and not using their own billing number are another example. It appears, however, that the OMA has made a decision about how it sees, most effectively within that particular profession, meeting the demands that are being made in terms of service reductions and that a vote has been taken to implement unpaid days for each of the three years of the social contract. These were not the only options, however, that were presented, and whether this is the final option the OMA will come to or not is another story.

I have certainly had calls from individual physicians. God knows there are 23,000 doctors in Ontario, and I have not had calls from them all, but many of them are very concerned at some of the options that were put to them and what decision-making will be done by their representatives that may affect their particular sectors within the medical association.

As far as I'm concerned, the OMA has come forward with this amendment as an executive body. They have made that recommendation to government, and whether an across-the-board equivalent treatment of all doctors is a preferable option or whether there is another option that's available, it seems to me there has to be legislative authority to do what wasn't done in the 1991 agreement. I suppose this amendment provides flexibility to take into account this arrangement.

I was surprised, I have to suggest, that in the options that I see -- and there may be more; maybe I didn't get all the pages -- one of the options that wasn't put was the option that is already authorized legislatively, and that is a cut in the fees under the fee-for-service schedule.

Maybe that's there, maybe that has been on the table, maybe it won't work and maybe they can't reach their targets. I think this is a hell of a way to plan a health care system.

Mr Jim Wilson: Just very briefly, somewhat in response to Mr Hope's comments, I just want to read a paragraph out of the Globe and Mail dated November 15. It says:

"OMA president Dr Tom Dickson told a press conference Saturday that physicians want to be treated like all other members of the public service. `We can either take a reduced price per service or we can try to reduce the number of actual services. Nobody else under the social contract has been asked to take a reduced price. They have been asked and ordered to take days off, in other words, reduced service. That's exactly what we're trying to do.'"

I hope, Mr Hope, that you'll take Mr Dickson's concerns into consideration, that the government will do so. I think the physicians have been forced into a rather uncomfortable corner by this government, and it'll be interesting to see what the government's response is.

Again, I would ask the parliamentary assistant for a time line with respect to those negotiations.

The Vice-Chair: Do you wish to respond, Mr Wessenger?

Mr Wessenger: No, I don't wish to respond. But I think, just to reiterate the aspect we have to look at, we're in a new world with respect to our health, payment for health services. We've moved away from an open-ended insurance model to a management model. In a management model with overall caps on health-care spending, which I think are here to stay permanently, you have to have the flexibility to deal with those caps. I think this motion provides that flexibility to deal with that.

The Vice-Chair: Any further discussion? If not, a vote on Mr Wessenger's motion. In favour? Opposed? Carried.

Would you proceed with the next amendment, Mr Wessenger.

Mr Wessenger: I move that subsections 2(4), (5) and (6) of the bill be struck out and the following substituted:

"(4) Subsection 45(1) of the act is amended by renumbering clause (a) as clause (a.1) and adding the following clauses:

"(a) prescribing the form of the health card;...

"(c.1) prescribing numbers of members for the purposes of clauses 5(2)(a) and (b) and paragraphs 1 to 5 of subsection 6(1);...

"(w) prescribing persons for the purpose of subsection 11.1(2);

"(x) prescribing, for the purpose of clause 19.1(3)(d), what constitutes an application for a provider number or its equivalent;

"(y) prescribing persons for the purpose of subsection 43.1(1)."

Before I continue, I'd like to ask legislative counsel about clause (a), where it says "prescribing the form of the health card." "Health card" is defined. Okay?

Mr Frank Williams: That's right.


Mr Wessenger: Okay. If I might continue then,

"(5) Section 45 of the act is amended by adding the following subsections:

"Regulations to implement agreement

"(1.1) In order to implement an agreement that deals with a matter referred to in this subsection and that is made, after the coming into force of subsection 2(5) of the Expenditure Control Plan Statute Law Amendment Act, 1993, by the government of Ontario (or the Minister of Health) and the Ontario Medical Association, the Lieutenant Governor in Council may make regulations,

"(a) prescribing, for the purpose of clause 19.1(3)(g), classes of physicians that are eligible for the purpose of section 19.1;

"(b) prescribing the classes of physicians that are not eligible under section 19.1(4);

"(c) prescribing, for the purpose of clause 19.1(7)(b), the purposes for which the minister may exempt a physician or a class of physicians from the application of subsection 19.1(1);

"(d) prescribing services that meet the requirements of clauses 36.1(1)(a) and (b) as third-party services, or prescribing them as third-party services in specified circumstances, and specifying the circumstances;

"(e) in relation to a specified third-party service or in relation to a third-party service provided in specified circumstances,

"(i) prescribing another person or entity as a third party instead of or in addition to the person or entity who makes the request or requirement referred to in clause 36.1(1)(a),

"(ii) if more than one person or entity make the request or requirement referred to in clause 36.1(1)(a), prescribing one or more of them as third parties and providing that the others are not third parties, or

"(iii) providing that there is no third party;

"(f) designating or establishing a body that shall have power to decide disputes about payment for third-party services, including power to summon witnesses and require the production of documents and power to award costs and interest;

"(g) governing the composition of the body referred to in clause (f), the qualifications, appointment, functions and remuneration of its members and their immunity from liability;

"(h) prescribing the parties to a proceeding before the body referred to in clause (f) and the rules governing practice, procedure and evidence in a proceeding before the body, including prescribing whether or not the body is required to hold a hearing;

"(i) prescribing the duties and powers of the body referred to in clause (f) in relation to making decisions and orders;

"(j) providing that a court or body acting under subsection 36.3(4) shall consider other matters in addition to or instead of the guidelines and schedules of fees referred to in subsections 36.3(5) and (6), and specifying those other matters;

"(k) prescribing amounts for the purpose of clauses 26.1(1)(a), (b) and (c), or prescribing rules for determining those amounts;

"(l) prescribing amounts for the purpose of subsection 26.1(2), or prescribing rules for determining those amounts;

"(m) prescribing associations and other entities representing practitioners or health facilities for the purpose of subsection 26.1(3).

"Classes of physician

"(6) A regulation made under clause (1.1)(k) may prescribe different amounts or rules for different classes of physicians, and for that purpose may prescribe classes of physicians.

"Nil amount

"(7) An amount prescribed under clause (1.1)(k) or determined according to rules prescribed under that clause may be a nil amount.

"(6) The act is amended by adding the following section:

"No appeal

"45.1(1) Every decision by a body designated or established under clause 45.(1.1)(f) respecting a dispute about payment for third-party services shall be final and binding and shall not be subject to appeal.

"Enforcement of decision

"(2) The body designated or established under clause 45(1.1)(f) or a party to a proceeding before the body may file a copy of the decision or order of the body, excluding the reasons, in the Ontario Court (General Division) or, if the amount ordered to be paid does not exceed the monetary jurisdiction of the Small Claims Court, in the Small Claims Court and, when so filed, the decision or order may be enforced as an order of the court in which it is filed."

This provision sets out the regulation-making powers and particularly deals with the question of setting up an alternative tribunal to the courts with respect to third-party obligations.

Mr Jim Wilson: Mr Chairman, could I ask for an explanation or clarification from the parliamentary assistant and perhaps legal counsel? I understand this is version 3 of this particular government motion. What makes it different from the previous version that was provided to us earlier by the government?

Mr Wessenger: I'll ask legal counsel to cover that.

Mr Williams: The simple explanation is that we had provided for every permutation and combination of the different versions of the health card reporting section and whether or not things could or could not be ruled out of order. This is the version that best matches what has happened this afternoon.

Mr Jim Wilson: You're asking for a great deal of power here with respect to the powers of the Lieutenant Governor in Council, ie, cabinet.

Mr Wessenger: It's all complementary to everything we've passed, Mr Wilson.

Mr Jim Wilson: I suppose I'm to take your word for it.

Mr Wessenger: Well, I'm taking legal counsel's word for it.

Mr Jim Wilson: We've been down this road before, Mr Wessenger.

Mr Wessenger: I can usually rely on legal counsel.

The Vice-Chair: Any further discussion?

Mr Jim Wilson: Could we just have one minute, Mr Chairman? It is a lengthy motion that hadn't been seen previously. Perhaps it would be useful if the parliamentary assistant or legal counsel could just take us through the steps that would be encountered with respect to third-party billings in terms of the body that's to be set up to enforce decisions with respect to that issue. Give us a layman's road map.

Mr Wessenger: I'll ask legal counsel to see if they can summarize basically what the provisions provide with respect to third-party tribunals. Is that correct?

Mr Jim Wilson: Yes.

Mr Williams: Bear with me if I go through this slowly to make sure I'm not missing anything.

If you go to clause (e), I think that's the first clause that addresses the issue you've asked about. Clause (e) prescribes the power to name another person or entity as a third party; then (f) goes on to establish or designate the body that you've now referred to; (g) talks about the composition of that body, qualifications of appointment, functions and remuneration of the members and their immunity from liability; (h) is prescribing the parties to a proceeding before that body; and (i) the duties and powers of the body itself.

Mr Jim Wilson: Yes, but what I'm interested in is, because these are regulatory powers, there's not much meat on the bones here. I really can't envision exactly how the body will function. Is there even a title attached to this body?

Mr Williams: This would be a body that would be negotiated between us and the Ontario Medical Association as being the appropriate body. It would function similarly to a court except that we envision that rather than getting into a lengthy tribunal type of hearing, there could be an exchange of documents to eliminate the problem that people have when they go before tribunals and courts and have an exchange of documents a paper hearing.

Mr Jim Wilson: This particular body, though, is it envisioned that it would consist of prescribers and government members?

Mr Williams: We haven't decided, but it could be a mix of all of the above, none of the above, whatever we agree would be the appropriate mix in the circumstances.

Mr Jim Wilson: Its decision is final according to this?

Mr Williams: Yes. We don't anticipate, quite honestly, that there'd be a large volume of cases that would come before this tribunal. The more likely scenario would be that there might be a flurry at the beginning, and once there's a precedent-setting case or two, things will resolve themselves between doctors and third-party requesters.

Mr Jim Wilson: Correct me if I'm wrong. What I'm driving at here is that we had representations from school board authorities and from the hospital association with respect to, in some cases, who would pay for services that had been delisted; ie, if a service had been delisted but it was normally performed in a hospital, the act, as previously written, certainly made it clear that physicians would be reimbursed. A dispute regarding a hospital that may feel it hasn't been properly reimbursed for a service conducted within its walls, would it go before this body? That's what I'm trying to envision here.


Mr Wessenger: I don't think it was likely envisioned you're going to have the problem with a health facility or this type of third-party situation. I'm sure that would be resolved. I would think it would more likely apply to somebody who had been billed excessively, basically. An individual objecting to being billed excessively is most likely where it's going to arise.

Mr Jim Wilson: So a consumer could make a complaint --

Mr Wessenger: A consumer, that's right. I can see this tribunal being basically consumer oriented and not being related to the institutions. They would generally all be dealt with in advance. Just talking from a legal practice point of view, normally these issues are resolved well in advance. When it's institution dealing with institution or business dealing with medical practitioners, you don't generally have a problem under our existing situation. Where the disputes arise is when a consumer feels they've been overcharged.

Mr Jim Wilson: I'm still concerned, though, with some of the comments made by day care operators, school boards and hospital associations because the way I read this -- and I may have missed something yesterday so please correct me -- is you could be trapping some institutions, for example, because this is their only recourse. Say, as you say, Mr Wessenger, that a particular billing wasn't resolved ahead of time, this to me reads that persons or entities no longer have the right to go to court, but are into this tribunal process. I'm trying to think of the worst-case scenario obviously.

Mr Wessenger: If I might sort of indicate, remember that the third parties who are going to be liable are those who are prescribed under the regulations.

Mr Jim Wilson: But having not seen the regulations, it makes it difficult.

Mr Wessenger: Of course, there is a review going on with respect to the question of -- many of these issues may be resolved away from the third-party issue. That's what probably I'd like to indicate, that when the review is conducted, I suspect the issue with respect to an institution such as a school or something would be dealt with in an alternative method rather than under this method.

Mr Jim Wilson: Okay. I don't want to prolong the point, but you're asking for some pretty wild, far-reaching powers and you're not giving legislators much of a vision on what exactly we're voting on with respect to this amendment. I'm trying to get it out of you the best I can.

Mr Wessenger: You should remember that all the body is determining is whether the charge was reasonable. Isn't that correct?

The Vice-Chair: Plus the right to recover when --

Mr Jim Wilson: Except that, through regulation, you could expand those powers, could you not? The way this is written, you're not just limited to what you just said.

Mr Wessenger: I think when you're setting up a tribunal, you'd have to -- I would ask legal counsel to confirm this is a usual provision --

Mr Jim Wilson: The record of setting up tribunals in this province is dismal. I'm about to vote on setting up another one and I'd like to know exactly what it's supposed to be doing.

Mr Wessenger: It would be parallel to a court basically. A tribunal could do exactly the same as a Small Claims Court would decide. I understand the concept here is to have a tribunal rather than the court because it felt it could be done purely on a paper basis, have summary procedures and be less expensive and less cumbersome for those people dealing with the issue, because I think it's fair to say that both consumers and providers find the courts somewhat of a cumbersome process to work with.

Mr Jim Wilson: I appreciate that point, but I think this shouldn't be lost on committee members. This is a very important tribunal in terms of if the government's going to continue to delist services, contrary to what legal counsel's opinion was, my political opinion would be that this could be a very busy body indeed. I would have preferred that we had a little more information with respect to where the government's going on this. None the less, Mr Chairman, I don't expect I'm going to get those answers tonight.

Mrs Sullivan: I want to move to a different section of the regs with respect to classes of physicians. You will recall that in the original Bill 50 one of the major points of contention was with respect to the minister unilaterally having the power by regulation to determine classes of physicians and different amounts by which the physician would be reimbursed and different rules would be put into place for different classes of physicians.

As I recall the debate at the time of the bill, one of the organizations that was most strongly opposed, among others, to that provision in the original bill was the Ontario Medical Association.

We see that the regulations would now allow the minister to prescribe precisely those things which were most highly objected to when the bill was first brought forward: different classes of physicians, different rules with no explanation of what those rules are, whether they're with respect to geography, whether they're with respect to types of service provided, whether they're with respect to numbers of patients that may be seen, how frequently. "Rules" is a very generic word. In fact, rules may encompass every single feature of the original Bill 50 which was supposed to have been gutted by these recent amendments.

I suggest to you that there haven't been any wins with this legislation.

Mr Wessenger: Legal counsel may want to add something, but prescribing obviously is in accordance with the provisions of the act. You can't go beyond prescribing classes of physicians for anything outside the scope of the act. So it's limited to that extent.

Mrs Sullivan: The scope of the act, I suggest to you, now includes quite extraordinary flexibility with respect to compensation for professional services and that flexibility, when such a generic word as "rules" is used, could mean the very things which we objected to and which I believe will destroy medicare in Ontario.

Mr Wessenger: I would point out that the prescribing classes would only be on the agreement with the OMA. Remember that clause is only with respect to implementing the provisions of an agreement.

Mrs Sullivan: No, that's incorrect. This refers right back to 45(1), to the regulations under the existing act. There is no indication that regulations under the existing Health Insurance Act require the consent of the Ontario Medical Association.

Mr Wessenger: Which provision are you particularly referring to?

Mrs Sullivan: Page 3, classes of physicians. This is a new regulation adding to subsection 45(1) of the existing act.

Mr Wessenger: Yes. If we go back to (1.1), it says, "Regulations to implement agreement: In order to implement an agreement that deals with a matter referred to in this subsection and that is made after the coming into force of subsection 2(5) of the Expenditure Control Plan Statute Law Amendment Act." So all this regulation-making power is limited to implementing an agreement.

Mrs Sullivan: In which case that agreement may well, without discussion, change the face of medicare. In this case, there are two partners attached to the decision-making.

Mr Wessenger: I think if an agreement is entered into between the government and the OMA, they have the power under this to implement the revisions of any such agreement.


Mr Robert Frankford (Scarborough East): I'm not a regular member of this committee so excuse me if I'm off on a tangent, but I was intrigued by a question which Mr Wilson was asking about the third-party situation.

I just wondered whether there might be circumstances in which the ministry or OHIP would find itself, as the third party, let's say in relation to procedures around the margin of what's eligible or not. I'm thinking perhaps of dental or facial things which I think often get into a rather marginal area of eligibility. Would that perhaps be a situation in which, as Mr Wilson says, there would be appeals because of the rather broad area that this body would be looking at?

Mr Wessenger: We do have a health services appeal which I believe would deal with a lot of those issues which you're concerned about, Dr Frankford, but I'm advised by legal counsel that the Health Services Appeal Board would be the body that would deal with those issues.

Mr Jim Wilson: What worries me about this whole thing, and I think Mrs Sullivan touched on it briefly, goes back to some of the discussion we had during the public hearings.

Basically, when this act passes and particularly these classes of physicians and some of the other provisions referred to, particularly (k), "prescribing amounts for the purpose of clauses" etc, if the OMA and the government want to continue to conspire to set up a two-tier medical system within the province of Ontario, we're giving you legislative authority to do that. Where is the public input for what's going on here with respect to classes of physicians, different amounts assigned to different physicians?

I raised, during committee hearings, what about those physicians who specialize in completely delisted services? Dr Tom Dickson of the OMA sort of didn't want to touch that one and I couldn't get any response from the government either, but you're asking for incredibly sweeping powers. You're counting on the fact that all future agreements are between the OMA and the government and behind closed doors you're going to do all this. I would have thought at least we'd have an explanation from the government with respect to public input.

I know now in a token way you're giving some public input with respect to delistings, but you are changing the way physicians traditionally have been reimbursed by the province, you possibly could change the classes of physicians that we have, yet a lot of this wasn't discussed thoroughly in the public hearings with respect to this bill and that disturbs me greatly.

I think you're slipping through some pretty powerful legislation in the hope that the public doesn't catch on. It's my belief that the public will only catch on when problems start to occur long after you people are out of office.

Mr Wessenger: The only thing I might point out is that section 26.1 relates purely to the question of how payments are made to physicians. That is what it is limited to, the question of payment to physicians only.

Mrs Sullivan: And may include zero payment, which may include zero service whether it's medically necessary or not.

Mr Wessenger: We certainly have political accountability. That's the way our system works.

Mrs Sullivan: I have one other question and I had forgotten to ask it when Mr Wilson was leading the discussion on the third-party services. Could the parliamentary assistant tell us what fee schedules exist now for services which are not insured, how are they made public, will this new body have access to such a fee schedule and how will that be negotiated? What is the fee schedule and how is it determined for those services not considered to be insured services? Who makes that decision?

Mr Wessenger: Who makes the decision? Obviously, the question of what items are insured is made by whatever government happens to be in power. One of the problems with respect to the fee schedule is that it's sort of grown over the years and never really been looked at to determine what is appropriate and what is inappropriate. There may be a lot of areas in the fee schedule that -- there's historical growth, so it may need a fair amount of rationalization. That's certainly what the joint management committee is designed to look at, to ensure that appropriate medical care is delivered.

That will continue to be an ongoing process. I think we will always be in an ongoing process of looking at schedule benefits to determine what is appropriate and what is not appropriate to be covered.

Mrs Sullivan: That isn't my question. We have new regulations that were brought forward, effective January 1, which delisted many services which in fact had not been, I acknowledge, really an essential part of medicare in that there could have been arguments made that they were not medically necessary and not part of a course of treatment. None the less, traditionally those services had been covered by OHIP, and it was a tradition that had built up over many years. The liability for payment for those services will now be a liability on a third party.

You have set up, or you will be setting up, a body with respect to disputes about where the bills go and who should pay and so on. What I'm asking about is, who sets the schedule, who determines how much those services cost and who will make a judgement about the cost of those services?

Is that a function of the new body? Is that a function of the OMA? Is it a function of the individual doctor, who says that, say, for a return-to-work physical it will cost $80 or it will cost $500 or whatever they're going to charge? I understand the college's role in terms of dispute resolution if a practice is considered to be unprofessional, but who would be setting the schedule, the fees, the price list for those services, which are now by regulation deinsured and will be charged for?

Mr Wessenger: I'm uncertain whether you're referring to the third-party issue of services or whether you're referring to the broader question of the situation with respect to medical services in general. If we're dealing with the third-party situation, the first thing I'd like to indicate is that there has been no basic change since 1980 with respect to the question of which third-party items are not insured.

In 1980, under regulation 452 of the Health Insurance Act, there were certain services which were deemed to be uninsured. Some of them were medical examinations, for instance, for the purpose of an application for admission to or continuance at a school, college, university, camp, association, club, group or program.

Mrs Sullivan: I understand all that. What I'm saying is, who sets how much those services cost?

Mr Wessenger: I understand for third party, the Ontario Medical Association has a schedule, and the Colleges of Physicians and Surgeons oversees that the fees set out in that schedule are not excessive. In effect, the OMA would set a suggested fee schedule and the college, as the governing body, has the obligation to see that what the OMA does is not excessive.

Mrs Sullivan: Would this body that you're setting up be dealing with disputes with respect to the cost that's charged by a physician for a service which is not insured? Is that part of the mandate?

Mr Wessenger: We're talking about under the bill?


Mrs Sullivan: Yes, under your regs, the new body that you're setting up to deal with disputes as to who pays for third-party services.

Mr Wessenger: Counsel's gone, but my understanding would be that this only deals with the third-party issues; that is, where there is not --

Mrs Sullivan: But that's going to be the question. If I am a school board and parents of children -- no, just a minute now. I am an insurance company; I represent an insurance company.

Mr Wessenger: Okay. That would be better than saying --

Mrs Sullivan: A person who is applying for continuation of insurance and has to have a document with respect to that application goes to the doctor. That will now be a third-party billing. It is required by the third party, me, the insurance company. I get the bill. I don't want to pay the bill. The patient I have sent there is ultimately asking me to appear before the new body you're setting up. The new body you're setting up has a mandate. The reason I don't want to pay the bill is that I think the bill is excessive. Does the new body you're setting up deal with the cost of the service or simply who is liable for payment?

Mr Wessenger: No, I understand the tribunal has the right, if it feels the fee is excessive, to reduce it. It will definitely have the jurisdiction to reduce an excessive fee.

Mrs Sullivan: In general, will the body be responsible, then, for a kind of negotiating role with the OMA with respect to those third-party services which are not insured?

Mr Wessenger: No, the tribunal will not be responsible for any negotiating. It's purely a hearing body only.

Mr Frankford: I just wanted to hopefully be helpful in clarifying this. To my understanding, the OMA has always published, way beyond the inception of medicare, a recommended tariff for procedures of all sorts and I think has recommended for everything conceivable, including things like certification. In some things it's just been able to put in a suggested range; things like legal reports, obviously, the range of what one should charge can vary enormously. I think conceivably there would be disputes about how physicians choose to interpret the range that the OMA would recommend. I would imagine that in most cases, the tariff, the fee, is something which could be found by reference to the OMA. As I understand it, this body would be more looking at whether there's liability and who the third party is that has that liability.

Mr Wessenger: Yes, the body would look at the tariffs as a guideline, but it isn't binding on the body.

Mr Jim Wilson: I never did get an answer from the parliamentary assistant with respect to public input. It seems to me there's been a lot happen with respect to directing the health care system over the last couple of years. I think a pivotal point was when the government unionized the physicians of this province last year. Now we have a health care system for which I see the public having very little input on its future direction, and I'd like to know from the parliamentary assistant how or when the conscious decision was taken that all health care direction in this province with respect to insured medical services in the future will strictly be between the union and the government and that the --


Mr Wessenger: No.

Mr Jim Wilson: Well, you know, the powers you're asking for in this act go beyond what we traditionally asked, what we traditionally looked for, in OMA-government agreements. You unionized the physicians, which a lot of them still don't realize in this province, then you hash out this thing, all in the name of economics. It has a lot less to do with economics -- when one looks at all the cabinet authority that's being requested in this bill, it's got more to do with the future direction of our health care system.

I want to know, as a legislator, how are my constituents supposed to be involved in this? What is the avenue for the average person? I can see, after this bill is passed, I'll have the constituents, down the road, perhaps in a few months and a few years, complaining about different aspects of the health care system, that it's not meeting their needs. As some government member heckled a few minutes ago, we'll send them to the OMA.

It seems to me that you've closed the system. It's strictly between the government and the OMA now. We've got other health care practitioners shut out of the system, whether they realize it now or not. When this passes, what do you say? What are you going to say to your constituents, Mr Wessenger? You don't have any authority any more, unless you happen to be in cabinet.

Mr Wessenger: First of all, I think the whole issue of public participation is not really relevant, in my opinion, to Bill 50. Bill 50 is implementing agreement.

Mr Jim Wilson: It's relevant to every piece of legislation, including this one.

Mr Wessenger: If I might just continue, since we invited a philosophical discussion today, I think we could all, if that's what we'd like to indulge in --

Mr Jim Wilson: A philosophical discussion is necessary when one has a bunch of --

Mr Hope: I'd like to stick specifically to the amendment which we're dealing with and not to a philosophical viewpoint.

Mr Jim Wilson: We are. These regulations cover anything you want to bring up.

The Vice-Chair: Please, one speaker. Mr Hope, continue.

Mr Hope: I'd like to make sure that we stick with the amendment, not the philosophical viewpoints.

Mr Jim Wilson: This isn't philosophical. What are you going to tell your constituents? They're struck right out.

The Vice-Chair: Mr Wessenger has the microphone.

Mr Wessenger: I'm going to respond philosophically and practically to the fact that in the past we've had the schedule of benefits determined solely by the OMA. Purely, the OMA in the past has determined what benefits were under the health insurance schedule.

We have moved now to a situation where we're having public participation with respect to the schedule of benefits. This is not related to this legislation, but the aspect is that there is now a public participation process. As I think was indicated many times previously in this hearing, we now have the public being part of determining what should be appropriate medical care. I would hope to see that expanded. I think this is the beginning, and I would agree we have to go much further. I would hope that we will move much further towards having public participation on the whole question of what appropriate medical care is.

Mrs Sullivan: I don't know if the government understands how offended we in our party and others feel about the bilateral nature of the determination of the shape of our medicare system. If the government party doesn't understand that this is part and parcel --

Mr Hope: Mr Chair, on a point of order: Are we sticking with the amendment that's being put forward --

Mrs Sullivan: You're darn right I am.

Mr Hope: -- or is this a philosophical viewpoint again?

Mrs Sullivan: You're darn right I am.

The Vice-Chair: Please. Did you complete your point of order?

Mr Hope: I'd like to stick to the amendment that's been put forward instead of the philosophical viewpoints that are being expressed.

Mrs Sullivan: I'm speaking precisely to the regulations that will give enormous bilateral power. They are there. Just look at the regulations.

When the parliamentary assistant suggests that the new process with respect to changes to the schedule of benefits involves the public, let me tell you that if it's not misleading the public, it comes very close. The agreement says:

"The government shall within 30 days of ratification" of the agreement "suggest a list of services to the JMC that could be delisted from the schedule...in an amount not less than $20 million.

"A panel appointed by the JMC...comprised of two physicians, two members of the public and two government members, with an independent chair, shall review the recommendations for delisting and make recommendations to the JMC on a package of services that could be delisted in the amount of $20 million within 90 days of ratification."

Don't tell me this is a public process.


Secondly, the regulations under this bill and the bill itself are there for one purpose and one purpose only: to come to terms with the agreement that has been reached between the government and the OMA. My personal view and that of my party is that bilateral agreements should not be directing the future of medicare in Ontario.

The Vice-Chair: Do you wish to quickly respond?

Mr Wessenger: I'll just make one comment. One aspect was neglected. I understand, and it's been clearly indicated, that the public will have the right to make representation to this panel. If that's not public participation, I don't know what it is.

The Vice-Chair: Shall Mr Wessenger's motion carry? Carried.

Mr Wilson, are you in agreement that the previous proposed amendment, the PC motion presented by Mrs Cunningham, be withdrawn?

Mr Jim Wilson: We'll be withdrawing that motion, which for the record is the motion dealing with subsection 2(3.1).

The Vice-Chair: That's correct. That is withdrawn.

Shall section 2, as amended, carry? Carried.

Shall section 3 carry? Carried.

Shall section 4 carry? Carried.

Section 5, the short title: I believe there's an amendment to that.

Mr Wessenger: No, there's no amendment to the title. It's not necessary.

The Vice-Chair: No amendment necessary?

Mr Wessenger: No.

The Vice-Chair: Shall section 5, the short title, carry? Carried.

Shall the long title of the bill carry? Carried.

Shall I report Bill 50, as amended, to the House? Agreed.


The Vice-Chair: Item 2 is report of the subcommittee on committee business. I believe you have received a handout from the clerk regarding this matter. Any questions regarding the report of the subcommittee on committee business dated Thursday, November 4, 1993?

Mr Jim Wilson: I believe the report of the subcommittee is an accurate account of what occurred at the subcommittee. It's my understanding, although I'm not clear, that the House leaders are not likely to come to a unanimous agreement with respect to the issue of night sittings for Bill 100. I think it's appropriate to raise that at this time. I'd like to put the government members on notice that more regularly scheduled committee hearings are going to be required. There is no precedent for night sittings, and I don't think we're going to get agreement; the two opposition parties are having difficulty with that. We have all kinds of legitimate reasons.

Secondly, there will not be enough time in the schedule to hear all of the witnesses. The government caucus should go back and consider either doing something to extend these sittings within normal sitting days or sitting again in January on Bill 100.

To be fair to all of the people who are asking to appear before the committee, I don't think Bill 100 can reasonably be done within the dictated time lines as put forward to us by the NDP. I want that clearly on the record. There are a lot of things happening in health care and, unfortunately, Bill 100 has been given very, very few public hearing days. The government's going to have to consider adding some more public hearing days during regular committee meetings.

Mrs Yvonne O'Neill (Ottawa-Rideau): I heard a statement that there's no precedent for night sittings. I don't think that's accurate. We've sat for extraordinary bills or motions or presentations. We've sat for teachers' pensions. We've sat for constitutional hearings. Last year we sat for MVA, which was a very local issue. So to say that this issue is dead and that we can't proceed to ask our House leaders to continue to negotiate on this item at this particular date, to me, is unacceptable.

Mr Larry O'Connor (Durham-York): We certainly do have a list of people who would like to come before us and I'm hoping that the House leaders -- maybe the House leader's office is watching us now. We certainly do have a concern. We'd like to be sitting in the evenings to fulfil the wishes of as many people who want to present as possible. So I support the subcommittee report and hope that all the House leaders can sit down and come with an agreement on these sitting days. Perhaps we can sit in the evening to deal with the public hearings aspect of this, because it is an important piece of legislation.

The Vice-Chair: You're prepared to move the adoption of the report?

Mr O'Connor: I'm prepared to move the adoption of the subcommittee report.

Mrs Sullivan: The subcommittee has advised that it has directed the Chair of the committee to write to the House leaders making the request. I believe that would have been done before this meeting, so as a consequence that action has been taken. I understand that a decision either has been made or is imminent that there will be no night sittings, so we will have to then adjust our schedules accordingly.

The Vice-Chair: We don't have the decision itself, though.

Mrs Sullivan: No, but I think it may just be something to keep in mind.

Mr Jim Wilson: I know we don't have the decision, but the subcommittee meeting was on November 4 and a lot of discussions have occurred since then. Just because we're adopting it now doesn't mean that life stood still waiting for us to adopt this subcommittee report.

Back to my point about precedents: I don't think there have been precedents given for what we're requesting, and that is a blanket authority to sit nights across the board. There have been exceptions, yes, for committees to sit during the evening, but it's the fact that I think Ms Sullivan's correct. I do not think the House leaders are going to agree on blanket authority to sit evenings. We frankly raised this as part of this discussion on the report so that the government might, rather than waste any time, get back to us as soon as possible and indicate what the response will be to this issue.

These are going to be, I think, very emotional public hearings, very difficult hearings for a number of people, and I think the government is going to have to consider, during normal legislative time, extending these hearings at least further into December, if the House is sitting, and perhaps to be real and to ensure that all the witnesses are allowed to be heard, into January.

No party wants to delay this legislation. My party brought forward a private member's bill which essentially got the ball rolling on this legislation. That was a bill introduced by Mr Eves. But to be fair to presenters, I think we need a response back from the government as soon as possible.

Mrs Sullivan: From the House leaders.

The Vice-Chair: Any further speakers? If not, shall the motion to adopt the subcommittee report carry? Carried.

Any further business before the committee? If not, the meeting is adjourned.

The committee adjourned at 1739.