TTL's Brooke Shekter says that rather than challenge, doctors will likely just end virtual options
The Ontario government’s decision to stop provincial funding for virtual care by emergency room physicians at the end of March, along with an earlier move to reduce OHIP payments for family doctors who provide virtual care, not only eliminates innovative pathways to healthcare but is something that could violate provincial and federal legislation, says health law practitioner Brooke Shekter.
However, Shekter says that it is unlikely that family physicians will challenge the move. Instead, “they’ll just stop providing that virtual care, and that will have an impact on the public.” Challenging the action “would be a complicated argument, so I think it’s more likely that doctors would just shut down some of these programs.”
On Dec. 1, a new physician services agreement between the province’s Ministry of Health and the Ontario Medical Association (OMA) came into effect with a new virtual care funding framework. While the new schedule of benefits for physician services made temporary virtual care billing codes permanent, the new Ontario Virtual Care Program pricing structure, rates and payment parameters have new limits on what OHIP — the province’s public health insurance plan — will cover.
The new agreement between Ontario’s Health Ministry and the OMA would charge a $20-dollar flat fee for a virtual visit (and $15 for a phone call visit) where there is no existing relationship between the physician and patient. Physicians who have previously seen a patient in person once in the prior 24 months will be paid the same fee for virtual care as in-person care, but not those providing “one-off” visits.
The payment for virtual visits, whether to the ER or with a family doctor, was adopted during the pandemic to deal with the potential transmission of COVID-19 during in-person visits. Shekter says the measures also proved to help “people who aren’t really that from sick clogging up emergency rooms.” She also notes that millions of Ontarians don’t have a regular family physician, and the ER or walk-in clinics are often their only option for getting seen by a doctor.
And the scaling back on virtual visits in Ontario could have ramifications on how the system meets the healthcare needs of Ontarians, Shekter. She says both provincial and federal legislation governs the provision of Ontario’s publicly funded healthcare system, “the purpose of which is to ensure that the government provides timely, accessible and effective medically necessary care to the public.”
On a provincial level, she says the purpose of Ontario’s Health Protection and Promotion Act is to “provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario.”
The preamble of the Commitment to the Future of Medicare Act, another piece of provincial legislation, states that the “people of Ontario and their Government…[r]ecognize that access to community-based health care, including primary health care…are cornerstones of an effective health care system.”
The preamble also states that the “people of Ontario and their Government…believe in public accountability to demonstrate that the health system is governed and managed in a way that reflects the public interest and that promotes efficient delivery of high-quality health services to all Ontarians.”
Shekter says that “making it financially impossible” for physicians to provide virtual care to reduce wait times in severely strained ERs is, “arguably, not promoting an effective health care system.”
In addition to being bound by provincial legislation, Ontario must also comply with the provisions of the federal Canada Health Act in connection with the governance of our public healthcare system.
Under section 5 of the Canada Health Act, Shekter says each province is eligible to receive a full cash contribution payable by the federal government, to the province, for each fiscal year.
However, as outlined under section 7, “for the province to qualify for such a contribution, the province is legally required to provide “reasonable compensation for all insured health services rendered by medical practitioners.”
Shekter argues that the decision of the province to pay physicians $15 for a phone consultation, or $20 for a virtual visit, and to cut fees for virtual ER care altogether, is contrary “not only to the provincial legislation but also to the provisions of the Canada Health Act, which requires the province to provide ‘reasonable compensation’ to physicians.
She adds the low payment for virtual services is an “insult” to doctors who have “years in higher education and training and possess knowledge, skills and judgement that the general population doesn’t have.”
Cutting OHIP fees for physicians to provide virtual care “does not make a lot of sense” for a public healthcare system, Shekter adds, when juxtaposed against the Ministry of Health’s “apparent support” for private arrangements between corporations and public hospitals to use operating rooms on weekends, in the name of reducing wait times.
The contradiction seems to go against explicit legislative directives to the provincial government to promote “efficient delivery of high-quality health services to all Ontarians,” a cornerstone of Ontario’s publicly funded system.