The Physician Payment Review Board (PPRB) recently heard an appeal by a surgeon who had been denied payment for insured services by the General Manager of the Ontario Health Insurance Plan (OHIP) for five surgeries he had performed on five patients. The denial of payment was based on s. 18(3) of the HIA on the basis that the claims for payment had not been made within the prescribed time frames.

The surgeon subsequently requested an order from the PPRB that his claims had been improperly denied and that he should be paid in full. The appeal was brought under s.18 of the Health Insurance Act (HIA)

Order of Case Presentation

Based on the Board’s decision in Mayer v OHIP, OHIP normally bears the burden of proving its position.

The surgeon sought to proceed first in order to ensure that the PPRB clearly understood the context and history of the dispute. Despite this request, the Board ruled that OHIP should proceed first.

Facts

It was agreed that the surgeon’s claims had initially been made on time (one month following the services) and well within the six month deadline for submitting accounts set out in Ontario Regulation 22/02 of the HIA.

Evidence established that, in general, the surgeon’s previous claims took between three and four months to be processed, although it occasionally took more than six months. The surgeon was in the habit of regularly calling the regional office to follow up on his accounts. When there were concerns about payment submissions, the Ministry would reply with error codes, one being an AMS code. When these were received, the surgeon inquired if his surgical notes were required in response. He was told they were not.

Later, the surgeon was asked to resubmit the claims that had received the AMS error code, and to include his surgical notes as well. He replied that he had attempted to address the error codes in the past and had not understand that his notes would be required in response. He would send the notes only when specifically asked. The surgeon further led evidence that his office would have sent his notes within the six months following the procedures as a matter of practice by facsimile. The Ministry had no record of their receipt but did not dispute that they may have been received.

When the surgeon resubmitted his payment requests they were refused on the basis that they had been submitted out of time. He was advised by the Ministry to submit reasons why there were extenuating circumstances beyond his control which had led to the delay. He did so suggesting that it was his office billing software that was to blame. This effort was not successful and all other internal appeals were exhausted.

OHIP Processing Process

Claims for payment received by OHIP follow one of two routes.

The initial process is known as screening and may result in: rejection for data errors, approval, or error code indicating that some further assessment is required. All such codes begin with the letter A. All such responses were said to be communicated to the physician concerned.

The second stage of the process is known as the assessment process. If the claim is submitted to this stage, the claims assessor may approve the payment, deny the payment, refer it to a medical consultant or finally return it to the physician for resubmission with requested supporting information.

In this case, the the five claims had all been assigned an error code and went through the assessment process. OHIP’s position was that, at that point, the payment claims must be resubmitted and the error code must also be addressed. The claims would then be considered afresh by OHIP if submitted within the six month time frame. OHIP further submitted that the surgeon should have known this from the response received by his billing software and taken the appropriate action. AMS means, in all cases, that further information is required.

Jurisdictional Dispute

OHIP is empowered by s. 18(2) of the HIA and Regulation 552 to review and determine the eligibility for payment of physician billing submissions. If they are denied, the physician may within twenty days of notice seek a review before the PPRB. However where OHIP refuses to pay a billing submission by reason of the wrong form being submitted, does not meet the prescribed requirements, or is untimely, there is no right of appeal.

The latter was OHIP’s position. It sought to quash the appeal before the PPRB without success. The Board felt it had jurisdiction to determine whether the refusal was made pursuant to s. 18 (2) or (3). OHIP’s request for reconsideration under the Board’s Rules of Practice and Procedure was also denied. OHIP sought judicial review. The Ontario Divisional Court held the application was premature stating a full review could only occur when the PPRB had given the matter its full consideration.

Issues before the PPRB

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

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

PPRB Decision

The mere claim by OHIP that its decision was based on s. 18(3) does not preclude the matter. The PPRB has jurisdiction to decide if the determination was in fact made under subsection (3) or subsection (2) especially where the reasons for the denial are unclear and the physician has exhausted all internal dispute routes.

The claims were submitted on time and in the proper form. They were assigned an error code. This means that they were being assessed further, not being denied. The claims were not accepted or denied under any bases found in the HIA. This then was a consideration by OHIP under s. 18(2) not (3). The assessment was not yet complete and was ongoing. The final decision was to be made when the additional requested material was received and reviewed.

This review process can take longer than six months. There is no statutory authority that the claims must be fully processed and assessed within six months. Such an interpretation would lead to the absurd result that OHIP could request further information on the day before the six month period leaving the physician unable to complete their full submission within the six month deadline.

The deadline is not rendered meaningless by this result. The physician must still begin the process within six months and would be motivated by self-interest to comply with further requests for information promptly.

In the result the surgeon’s payment request were timely and not barred from payment as a result of being untimely. OHIP is required to review and decide on the claims as timely.

Takeaways

The position taken by OHIP seems inherently wrong. It is expected, however, that they will seek judicial review of the PPRB decision.

At Wise Health Law, we focus on health and administrative law. Our lawyers have significant trial and appellate experience and are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We rely on our significant trial and appellate experience as well as experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation in health law related matters. To find out more about how we can help, contact us online, or at 416-915-4234 for a consultation.

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