CFTA will replace AIT this summer

The Agreement on Internal Trade (AIT) will be replaced by the Canadian Free Trade Agreement (CFTA) on July 1, 2017. The AIT has been in force since 1995 and its purpose was to improve interprovincial trade by removing trade barriers and harmonizing standards across provinces.

Ontario health care organizations that are subject to the BPS Procurement Directive rely on AIT exemptions to allow them to sole-source or single-source in specified circumstances.

DDO Health Law is undertaking an analysis to identify what has stayed the same in the CFTA – and what has changed with respect to procurement rules, thresholds and exemptions. How will this impact your health care organization? Stay tuned! We will post more!

See the CFTA and more background info at:

http://www.ait-aci.ca/agreement-internal-trade/cfta-announcement/

If you have any questions about how the CFTA may impact your health care organization and its procurement activities, please contact me at kobrien@ddohealthlaw.com.

And follow me on Twitter @KathyOB_DDO and follow DDO @DDOHealthLaw.

Patients First Act (Bill 41) receives Royal Assent

Bill 41, the Patients First Act, received Royal Assent on December 8th — it is now law.

What were the final changes to the Bill?

The Bill was reported out of Committee last week with a handful of amendments, most of them focusing on privacy. The amendments emphasize the protection of personal health information in the hands of investigators and supervisors appointed by the Ministry or the LHIN and require that any public report prepared by an investigator or supervisor include only de-identified personal health information.

There is also a new requirement that the LHIN provide prior notice of the appointment of a supervisor not just to the board of the impacted health service provider but also to the Minister.

Another change requires the Minister to consider the French Language Services Act requirements when establishing provincial priorities and strategic directions for the provincial and local health systems in Ontario.

Questions

If you have any questions about how Bill 41 may impact your health care organization, please contact Kathy O’Brien: kobrien@ddohealthlaw.com.  Follow me on Twitter @KathyOB_DDO.

MOHLTC seeks feedback on proposed QCIPA regulations

The Ministry of Health and Long-Term Care has issued proposed regulations under the Quality of Care Information Protection Act.

These regulations would:

  • add long-term care homes and laboratories and specimen collection centres as health facilities.  Health facilities can establish Quality of Care Committees that enable them to hold shielded discussions about quality of care issues.
  • require all health facilities to have written terms of reference for their Quality of Care Committee that are available to the public.

See the regulations at:

http://www.ontariocanada.com/registry/view.do?postingId=22134&language=en

Comments are due by November 28th.

 

 

Bill 41 Patients First Act – What Has Changed from Bill 210?

Minister of Health and Long-Term Care Dr. Eric Hoskins introduced Bill 41, the Patients First Act, on October 6th.  Bill 41 replaces June’s Bill 210, which died when the Premier prorogued the Legislature on September 12.

There was significant stakeholder feedback on the original Bill 210.  Does the new Bill 41 include any amendments to appease concerned stakeholders?

Yes.  Here are the significant amendments:

  • LHIN Operational and Policy Directives – Hospitals Excluded. A significant win for the Ontario Hospital Association — public hospitals and the Ottawa Heart Institute have been exempted from the LHINs’ new powers to issue operational and policy directives to HSPs.  Long-term care homes were previously exempted in Bill 210 (and this exemption remains).  Both the OHA and the OMA had expressed concern that the unlimited scope of this directive-issuing power could threaten hospital autonomy and self-governance.
  • LHIN Operational and Policy Directives — Limits on Directives Issued to Religious Organizations. Religious organizations are not exempted from the LHINs’ powers to issue operational and policy directives.  However, the LHIN’s powers are abridged.  The LHIN may not issue directives that would unjustifiably require a HSP that is a religious organization to do something contrary to the religion of that organization.  One can imagine that Catholic HSPs were concerned that procedures contrary to the Catholic Health Ethics Guide might be imposed by directive.
  • LHIN Operational and Policy Directives — Notice Required. Bill 41 adds a new requirement that both the Minister and affected HSPs be given notice of any draft directive.  The specific amount of prior notice is not prescribed; a notice could be given only a day before the directive is issued.
  • LHINs Must Give Minister Notice of Appointment of an Investigator. The LHIN must give both the Minister and the affected HSP notice before it appoints an investigator over the HSP.  This is new to Bill 41.  Again, no specific amount of prior written notice is prescribed.  Oddly, the notice provisions for appointing supervisors (supervisors have more powers than investigators) were not updated in Bill 41.  Bill 210 contemplated that the affected HSP receive prior notice.  Bill 41 does not add a requirement that the Minister also receive notice.  Perhaps this is based on an assumption that the LHIN will always appoint an investigator before escalating to the appointment of a supervisor, in which case the Minister would already be on notice?  But this assumption is baseless — nothing in Bill 41 requires the appointment of an investigator to precede the appointment of a supervisor by a LHIN.  We would have expected that the Minister would be given notice of any appointment of a supervisor.
  • Community Service Providers to LHINs are excluded HSPs. Bill 210 added to the list of HSPs under the jurisdiction of the LHINs – particularly, primary care providers such as family health teams, nurse-practitioner-led clinics, and aboriginal health access centres.  Bill 41 excludes from that list any entity that is a service provider under the Home Care and Community Services Act (HCCSA) and that is also a vendor of a “community service” to the LHIN, but only in respect of that purchased service.  This excludes a long list of community service providers from the impact of Bill 41 – at least to the extent the LHIN purchases the community services from them.  We presume the rationale for this exclusion is that the LHIN’s control of purchased service providers is through its negotiated services agreement with those service providers.  One could envision significant conflicts of interest if the LHIN had regulatory and funding control over a purchased service provider.  Recall that “community service” under the HCCSA is broadly defined to include:
    • Community support services, which include the array of meal services, transportation services, caregiving support services, home repair and maintenance services, friendly visiting services, security check services, social or recreational services
    • Homemaking services
    • Personal support services
    • Professional services including nursing, occupational therapy, physiotherapy, social work, speech language pathology, dietetics.
  • Timing of Voluntary Integration Reviews. Bill 210 changed the review period for a LHIN to review voluntary integrations by HSPs from 60 to 90 days, and added a second phase of further review.  In this second phase, the LHIN could request further documents or information and have 90 additional days for the review.  Bill 41 tweaks this second phase of the review:  the LHIN may only exercise its rights to request further documentation once, and the second review period is reduced to 60 days (from 90 days).  This does not address one of our concerns:  we were hoping that integrations before the LHIN under the current 60-day timeline would be grandfathered.  Integrations currently underway have rigid timelines and are often reliant on the LHIN working within the current 60-day review period.
  • Imposing a SAA on a HSP requires Negotiations, Meetings and Notices to the Minister. The process by which a LHIN may impose a service accountability agreement (SAA) on a HSP is more detailed and requires further steps in the negotiating process:
    • written submissions from both parties must be exchanged, setting out the facts/events giving rise to the inability to settle the SAA, whether these facts/events are specific to the HSP or systemic, and potential options for settling the terms and conditions of the SAA (60 days)
    • actual meetings between CEOs and then between Chairs before the LHIN gives notice of an offer to settle the SAA, which notice must be copied to the Minister
    • if the HSP rejects the LHIN’s offer, it must state reasons and provide the reasons to both the LHIN and the Minister
    • the LHIN must consider the HSP’s reasons, but may ultimately impose a SAA on the HSP with notice to the Minister.
  • Reasons for Asking for Information under Regulations Explained. The OMA had expressed concern about Bill 210’s ability to allow Cabinet to establish regulations requiring physicians to provide information to the LHIN.  Bill 41 does not change this potential regulation-making ability, but it does state clearly why the information may be requested of prescribed persons such as physicians:  “in order to support collaboration between health service providers, local health integration networks, physicians and others in the health care system, and to support planning of primary care services, including physician services, that ensure timely access and improve patient outcomes, including information to facilitate understanding by the network of, (a)  transitions in practice, including opening, closing, retirements and extended leaves; and (b)  practice and service capacity to address population needs of the local health system in the geographic area of the network.”

If you wish to discuss Bill 41 or arrange for an educational session for your Board, please contact Kathy O’Brien at kobrien@ddohealthlaw.com.

Bill 210 – Patients First Act

Bill 210, the Patients First Act, proposes to change significantly how Ontario’s health care system is regulated and overseen.  Most importantly, it significantly expands the mandate and powers of Local Health Integration Networks (“LHINs”).  The Bill was introduced by Minister Hoskins on June 2, 2016.

The Ontario Government established LHINs in 2006 under the Local Health System Integration Act, 2006 (“LHSIA”), creating 14 geographic LHINs throughout the Province.  The LHINs were set up to fund and oversee a finite list of “health service providers”, including hospitals, psychiatric facilities, long-term care homes, and community care access centres.  The LHINs were originally given the power to:

  • review and refuse voluntary integrations between health service providers; and
  • order integrations between health service providers.

Bill 210 proposes to give the LHINs an expanded role by adding to the list of health service providers under the LHIN’s jurisdiction.  These additional are primarily primary care health providers, such as family health teams, nurse practitioner-led clinics, aboriginal health access centres, and primary care nursing services.  Palliative care services (including hospices) and physiotherapy services in a clinic setting are also added to the list of health service providers.

The Bill puts in place the mechanics by which the LHINs will take over the community care access centres (“CCACs”).  CCACs are currently responsible for providing health and social services in home and community settings and managing the placement of individuals into long-term care homes, supportive housing programs, and chronic care and rehab beds.  This major policy change was announced in December 2015 through a discussion paper focused on changes to primary care in Ontario.  This is a sizable change in the LHINs’ mandate – they are evolving from a regulator and funder to a service provider themselves.  The transition of the CCACs to the LHINs will be seamless, as the LHINs inherit the assets, liabilities and staff of the CCACs through Ministerial order.

Bill 210 also gives the LHINs considerable new powers over the expanded list of health service providers, some of which raised eyebrows across the sector.  The most commented on new power is the ability of the LHIN to issue (provided it is “in the public interest” to do so) “operational or policy directives”, which when issued are mandatory for health service providers.  There was serious concern expressed that Bill 210 was a first step in eroding self-governance (volunteer local boards) of Ontario’s health service providers.  The Ontario Hospital Association was particularly vocal about the overly broad power given to LHINs to issue these directives, on virtually any possible subject matter, without any need for consultation or prior notice.

LHINs will also have the power to appoint an investigator over health service providers, with broad powers to investigate and report on the quality of the management of a health service provider, the quality of care provided by a health service provider, or any other matter that the LHIN considers in the public interest.  Investigators may enter premises, require the production of records, and question people on matters relevant to the investigation.  Investigators must prepare a report that will be made public.

Bill 210 also gives LHINs the power to appoint a “supervisor” over any health service provider (other than long-term care homes or hospitals).  A supervisor is appointed at the pleasure of the LHIN for an indeterminate period of time and has the exclusive right to exercise all of the powers of the health service provider’s board, its directors, officers and members or shareholders.  The Minister of Health and Long-Term Care has similar powers under the Public Hospitals Act, but the actual appointment of an investigator or supervisor must be made by Cabinet (the Lieutenant Governor in Council).  Under Bill 210, the LHIN would have this power directly, without needing to involve Cabinet.

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