Ontario Issues Draft Regulation Under New Proposed Health Facilities Regime

On June 9, 2023, the Ontario government published a draft regulation (Draft Regulation) to operationalize the Integrated Community Health Services Centres Act, 2023 (ICHSCA). The ICHSCA was introduced through Bill 60 as part of the province’s new proposed health facilities regime and is open for public comment until July 9, 2023.

Bill 60, An Act to amend and enact various Acts with respect to the health system (Bill 60), received royal assent on May 18, 2023. Also known as Your Health Act, 2023, it introduces a variety of health-care-related changes to Ontario, including repealing the Independent Health Facilities Act (IHFA) and replacing it with the ICHSCA. The date when the ICHSCA will come into force is still undetermined.

The Current Regime

Under the IHFA, an “independent health facility” (IHF) is a place where one or more members of the public receive health services for or in respect of which facility fees are charged or paid, or a health facility or class of health facilities as otherwise designated by the Minister of Health and Long-Term Care (Minister). Under the IHFA, a licence issued by the Director of Independent Health Facilities (Director) is required to establish and operate an IHF.

To establish and license an IHF, the Minister authorizes the Director to make a call for applications. IHFs in Ontario receive funding in various ways, including through:

• “Facility fees” under the IHFA

• Funding agreements with the Minister

• Professional payments for insured services performed pursuant to the Schedule of Benefits for Physician Services under the Health Insurance Act, via the Ontario Health Insurance Plan (OHIP)

It is notable that no new licences have been issued under the IHFA in the last 20 years.

Current IHFs perform a wide range of services, including diagnostic imaging, medical testing and other insured services, such as sleep studies, abortions, dialysis and pulmonary function studies. IHFs can be operated as for-profit or not-for-profit private clinics. Some IHFs offer services and procedures that are not captured in the Schedule of Facility Fees or insured under the Health Insurance Act, where patrons pay out-of-pocket, in addition to insured services.

The New ICHSCA

The ICHSCA repeals the IHFA and replaces the concept of IHFs with a new term: “integrated community health services centres” (Centres). Centres also include “community surgical and diagnostic centres,” which were not previously contemplated in the IFHA.

This broader definition expands the scope of possible services that could be offered compared to IHFs. The Minister has suggested in press conferences that new facilities may offer cataract, hip and knee surgeries, among other services. These procedures are currently conducted in hospitals and will continue to be publicly funded.

Although several of the licence application requirements are substantially similar, the ICHSCA regime provides a more detailed list of the contents required in a licence application. For example, applications under the ICHSCA must include much more detail regarding the proposed staffing model.

Arguably, the most notable change under the new regime is that the ICHSCA introduces new public interest components required in licence applications. To describe how the Centres will provide “connected and convenient care” for patients, applicants must:

• Address the Centres’ capacity to improve patient wait times, plans to improve patient experiences and access to care, and plans to integrate with the health system

• Demonstrate how they have consulted with health-system partners in the development of the application, including any endorsements received from them

• Describe how the Centre will address the health-equity needs of diverse, vulnerable, priority and underserviced populations

To mitigate some critics’ concerns that preferential treatment or queue jumping may be an issue, the new regime also contains some intentional elements in relation to uninsured services and extra billing. For example, the ICHSCA explicitly prohibits Centres from accepting payments or any other form of benefit from an insured person to obtain access to insured services at the Centres. This prohibition mirrors existing health-care legislation regarding extra billing. Patients cannot offer payments to expedite or enhance a treatment, service or surgery at any of the Centres. In addition, licence applicants must provide a description of uninsured services they will be receiving and the charges and process for patient consent for those services.

Implications and Path Forward

Bill 60 opens the door for a broader scope of services that can be performed outside of hospitals and has the potential to bring notable reform in the Ontario health-care system.

Some, however, have criticized the bill as a form of privatizing the public health-care system. Some critics note that there may be unintended potential impacts on staffing of public hospitals if Centre licensees are able to offer more attractive pay and benefits packages.

Furthermore, the regime broadens the qualifications for who may be designated as a Director. Directors no longer have to be employees of the Ministry and can be one or multiple third parties appointed by the Minister. Directors in charge of issuing calls for applications also have discretion to issue new classes of services without prior public notice or consultation. They can also prefer any licence applications over others, whereas their previous authority was under the purview of the Minister.

Finally, the new regime provides that information relating to Centre licensing applications are deemed to be supplied in confidence to the Directors for the purposes of the Freedom of Information and Protection of Privacy Act. Some criticize this as another way to shield private Centres from public scrutiny and transparency.

The Draft Regulation operationalizes additional aspects of the ICHSCA. Among other things, it:

• Continues the IHFA’s requirement to appoint an advisory committee and a quality assurance advisor to advise on the quality and safety standards at Centres. The quality assurance advisor is a health professional who provides insured services in or with respect to Centres. The advisory committee consists of other health professionals who provide services in or with respect to Centres.

• Provides that licensees must retain certain records (including patient records, complaints records, employee records and financial records for certain Centres) for prescribed periods of time

• Requires licensees to have a patient complaint process that incorporates certain requirements, such as investigations and response timelines, reviewing complaint records to determine improvements and reporting certain matters to the Director

• Places new transparency requirements expected of licensees, including posting their licence, a list of prices for uninsured services that are offered at Centres, their process for receiving patient complaints and contact information for the patient ombudsman

The Draft Regulation also prescribes The College of Physicians and Surgeons of Ontario and The College of Midwives of Ontario as inspecting bodies for the purposes of the ICHSCA. This is in slight contrast to the current regime, where only The College of Physicians and Surgeons of Ontario conduct assessments of IHFs.

Members of the public who wish to comment on the draft regulation have until July 9, 2023, to do so.

For more information, please contact:

Laura Weinrib              +1-416-863-2765
Pei Li                              +1-416-863-4265
Ellie Marshall                +1-416-863-3053
Lindsay Toth                 +1-416-863-2912

or any other member of our Health-Care Compliance group.