Health Sector Payment Transparency Act, 2017

Status

Schedule 4 of Bill 160 enacts the Health Sector Payment Transparency Act, 2017 (the “Act”). On December 12, 2017, the Act received Royal Assent, but has not yet been proclaimed in force.

Purpose of the Act

The purpose of the Act is to require the reporting of information related to financial relationships that exist within Ontario’s health care system. The purpose is also to enable the collection, analysis and publication of that information in order to, among other things:

  • strengthen the transparency to sustain and enhance patients’ trust in both the health care system and health care providers, and
  • allow patients to make informed decisions about their health care by providing them with access to information.

The Act is similar to the Physician Payments Sunshine Act found in the United States and is the first of its kind in Canada. The Act calls attention to the financial relationship between the medical industry (such as pharmaceutical and medical device companies) and those involved in the health care sector (individuals and organizations) – it creates a regime that requires mandatory disclosure of private sector payments to health professionals. As part of Bill 160, the Strengthening Quality and Accountability for Patients Act, 2017, the Act aims to enhance transparency, accountability, and the quality of care across the health care sector.

Requirements of the Act

The Act requires a “payor” to report to the Minister of Health and Long-Term Care (the “Minister”) information related to a “transfer of value” provided to a “recipient”, whether directly or indirectly through an intermediary. Intermediaries and affiliates may also be required to make reports, if requested by the Minister. The Act describes a payor as any of the following persons if the person provides a transfer of value to a recipient:

  1. A manufacturer that sells a medical product under the manufacturer’s own name or under a trade-mark, design, trade name or other name or mark that is owned or controlled by the manufacturer and that fabricates, produces, processes, assembles, packages or labels the product, even if those tasks are performed by someone else on the manufacturer’s behalf.
  2. A person who fabricates, produces, processes, assembles, packages or labels a medical product on behalf of a manufacturer described in #1.
  3. A wholesaler, distributor, importer or broker that promotes or facilitates the sale of a medical product.
  4. A marketing firm or person who performs activities for the purposes of marketing or promoting a medical product.
  5. A person who organizes continuing education events for members of a health profession on behalf of a manufacturer described in #1.
  6. A prescribed person or entity.

Note other relevant definitions:

  • “Transfer of value” means a transfer of value of any kind, including a payment, benefit, gift, advantage, perquisite or any other prescribed benefit.
  • “Recipient” means a prescribed person, as per the regulations, that receives a transfer of value from a payor.

The Act requires the following information to be reported:

  1. The name of the parties to the transaction.
  2. The source of the transfer of value (if requested).
  3. The parties’ respective business addresses.
  4. The date of the transfer of value.
  5. The transfer of value’s dollar value (or its approximate dollar value, if it is a non-monetary transfer of value).
  6. A description of the transfer of value (including reasons).
  7. Any other prescribed information.

The Act also requires the Minister to analyse the information that is reported for the purposes of health system research and evaluation, planning, and policy analysis. The Minister is allowed to disclose the information reported at least once in a calendar year. Furthermore, the Act establishes a framework for inspections and other compliance mechanisms.

Draft Regulations

In February 2018, draft regulations under the Act were published by the Ontario Government. Details found within the draft regulations include, among other things:

  • a list of 31 persons/entities that constitute recipients, including regulated health professionals; hospitals under the Public Hospitals Act and the Private Hospitals Act; psychiatric facilities under the Mental Health Act (subject to exceptions); a not-for-profit entity that operates a family health team or community mental health and addiction services; a licensee under the Long-Term Care Homes Act, 2007; a College under the Regulated Health Professions Act, 1991; a board member, director, trustee, officer, appointee, employee, or agent of a prescribed entity within this definition; etc.
  • a list of 24 items that are considered reportable transfer of values under the Act, such as cash or cash equivalents, honoraria, compensation for services, rebates and discounts, membership fees, supplies and equipment, food and beverages, travel and accommodation, personal gifts, royalties, etc.
  • the definition of intermediary – a person or entity is deemed to be providing or facilitating a transfer of value on behalf of a payor if the transfer of value originates from the payor (irrespective of whether the payor directs how the transfer of value is to be used by the intermediary or is aware of the identities of the recipients at the time the transfer of value is provided to the intermediary)
  • the monetary threshold for reporting a transfer of value set at $10 or more, and other exceptions to reporting requirements
  • other reporting requirements related to the classification of the transfer of value
  • new entities under the definition of payor, including community pharmacies and laboratories
  • the manner and frequency of reporting – every payor must report to the Minister every year, no later than June 30 in any year after 2019 for the previous calendar year.

Penalties

Penalties will be imposed on individuals and corporations for contravening the Act for each day or part of a day on which the offence occurs or continues to occur. These will range from $10,000-$25,000 for individuals and $50,000-$100,000 for corporations. However, a defence of due diligence is applicable in cases where all reasonable steps were taken to prevent the contravention, or at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts which, if true, would have resulted in there not being any contravention.

DDO Health Law Update

March 29, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

 

Bills

 

Bill PR79 – Kingston Health Sciences Centre Act, 2018

 

Introduced by Sophie Kiwala, MPP (Kingston and the Islands), Government, the Private Bill was referred to the Standing Committee on Regulations and Private Bills on March 27, 2018.

 

On March 31, 2017, Kingston General Hospital (“KGH”) and Religious Hospitallers of Saint Joseph of Hotel Dieu of Kingston (“Hotel Dieu Hospital”) voluntarily integrated to become Kingston Health Sciences Centre (“KHSC”). KHSC has applied for special legislation to provide that all gifts, trusts, bequest, devices and grants of property to KGH or Hotel Dieu Hospital, or to the University Hospitals Kingston Foundation for the benefit of either of them, shall be used for KHSC for the purposes for which they would have been used had the two hospital not integrated.

 

If passed, this Bill would grant the application.

 

For more information: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5655

 

Previously Report Bills

 

No updates to previously reported bills.

 

Approved Regulations

 

REG. 4/01: Approved Acts of Executors and Trustees

 

O.REG. 4/01 of the Charities Account Act will be amended on April 1, 2018 to allows directors of charities and “persons connected to a director” to receive payment for goods, services or facilities rendered under certain circumstances. This is a departure from existing charitable common law that prohibits directors of charities from receiving financial benefit, unless permitted by a court order.

 

The amended regulation sets out what a charity has to do in order to make a payment to a director or “person connected to a director”:

  • what payments or remunerations to directors do not apply;
  • how payments are to be made; and
  • what boards must consider before authorizing payment.

 

For more information: https://www.ontario.ca/laws/regulation/010004

 

Proposed Regulations

 

No new proposed regulations

 

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Bills

 

Bill 14 – Personal Information Protection Act, 2018

Introduced by Harinder S. Takhar, MPP (Mississauga – Erindale), Government, the Bill was referred to the Standing Committee on Justice Policy on March 22, 2018.

This Bill enacts the Personal Information Protection Act, 2018 (“PIPA”):

  • The Act would apply to every “organization”, which is defined as including persons, unincorporated associations, a trade union, a trust or a not-for-profit organization, but does not include individuals, public bodies and Ontario courts.
  • The Act also does not apply to Personal Information that is already subject to certain information protection statutes such as:
    • Freedom of Information and Protection of Privacy Act;
    • Municipal Freedom of Information and Protection of Privacy Act;
    • Personal Information Protection and Electronic Act;  and
    • Personal Health Information Protection Act, 2004.
  • Personal Information” means information about an identifiable person and includes employee personal information, but does not include contact information or work product information.

 

This Bill sets out general rules for the protection of Personal Information by organizations such as consent, collection, use, disclosure, access to, and correction of Personal Information. The Information and Privacy Commissioner would be responsible for monitoring the Act and ensuring that its purposes are achieved.

More Information: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5817

 

Bill 18 – Careers in Medicine Advisory Committee Act, 2018

Introduced by Gil Martow (MPP, Thornhill), Opposition, the Bill was carried on First Reading on March 22, 2018.

This Bill enacts the Career in Medicine Advisory Committee Act, 2018 requiring the MOHLTC to establish an advisory committee to consult with organizations and persons to develop recommendations for ensuring graduates of Ontario medical schools are matched with residency programs, and to develop a Canadian-wide strategy to do so.

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5821

 

Proposed Regulations

 

No new proposed regulations

 

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Proposed Regulations

 

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Bills

No new bills of interest.

 

Status of Previously Reported Bills

 

Bill Status
Bill 194 – Fairness in Procurement Act, 2018
Bill 193 – Rowan’s Law (Concussion Safety), 2018
Royal Assent received on March 8, 2018

Royal Assent received on March 7, 2018

 

 

Proposed Regulation

Proposed Regulations under the Proposed Fairness in Procurement Act, 2018 (Bill 194)

Bill 194 permits the Lieutenant-Governor in Council to make regulations governing procurement practices of Ontario government and/or broader public sector entities. The government  intends to bring forward two new proposed regulations to respond to the Buy American legislation enacted by the states of New York and Texas and to impose certain measures on government entities entering into procurement contracts with suppliers from the state of New York and the state of Texas.

Comment Due: March 9, 2018

For more information: Click here

 

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Bills

 

Removing Barriers in Audiology and Speech-Language Pathology Act

This Bill amends the Audiology and Speech-Language Pathology Act, 1991  to modify the scope of practice of audiology and speech-language pathology. The Bill expands the acts that may be performed by a member of the College of Audiologists and Speech-Language Pathologist in the course of engaging in the practice of audiology or speech-language pathology.

Introduced by Sam Oosterhoff (MPP – Niagara West-Glanbrook), Opposition, the Bill was carried on First Reading on February 28, 2018.

For more information: click here

 

Status of Previously Reported Bills

 

Bill Status
Bill 194 – Fairness in Procurement Act, 2018 Second Reading carried on Feb 28, 2018.

 

 

Proposed Regulation

Ontario Regulation 79/10 – Long-Term Care Homes Act, 2007 (“LTCHA”)

The MOHLTC is proposing to amend O. REG 79/10 to introduce an administrative monetary penalty which will be levied against a licensee for non-compliance with a requirement under the LTCHA, and to re-introduce re-inspection fee which would be issued for a second, and subsequent follow up inspections of an order(s).

If approved, the proposed amendments would come into effect July 1, 2018.

Comment Due: March 29, 2018

For more information: click here

 

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