DDO Health Law Update

July 27, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

 

No bills of interest.

 

Approved Regulations

 

No approved regulations of interest.

 

Articles of Interest

 

Marijuana

Ontario Premier Doug Ford set to privatize legal cannabis sales, reports say

Trip advisers’ help newbies navigate world of weed

How this ‘crusader of cannabis’ is helping women step up and shape a new industry

 

Privacy

Company that owns Polo Park using facial recognition in malls without consent

 

Health Care

Half of teen girls in Ontario under ‘psychological distress,’ CAMH survey shows

Ontario government to channel portion of mental health spending to police

 

Safety Injection Sites

Quebec health minister says Ontario’s plan to reconsider supervised injection sites a mistake

Hamilton’s supervised injection site says it can show province the merit of saved lives

Ontario to review safe injection, overdose prevention sites, health minister says

 

Wettlaufer Inquiry

Signs pointed to Wettlaufer being a sloppy nurse, not a serial killer, inquiry hears

College of Nurses of Ontario see increase in employer reporting amid Wettlaufer inquiry

 

Danforth Strong

St. Mike’s trauma surgeon relives night of the Danforth shooting

20 of our favourite places to eat and drink along the Danforth

 

What’s happening in our city this weekend:

Things to do in Toronto this weekend

DDO Health Law Update

July 20, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

Bill 3, Compassionate Care Act, 2017

 

This Bill was reintroduced to establish a provincial framework to support improved access to hospice palliative care. This Bill enacts the Compassionate Care Act, 2017, which requires the Minister of Health and Long-Term Care to develop the provincial framework. The Act requires the Minister to set out the provincial framework one year after the Bill comes into force, and within 5 years after the report is tabled, the Minister must prepare and table a report on the state of hospice palliative care, which should be published on a Government of Ontario website.

Introduced by Sam Oosterhoff, MPP (Niagara West), Government, the Bill was carried on First Reading on July 18, 2018.

More information: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-3

 

Approved Regulations

 

The following regulations all came into effect on July 1, 2018.

 

  1.            Amendments to O.REG 79/10 under the LTCHA, 2007

The following amendments were approved and filed:

  • Introduction of administrative monetary penalties and re-inspection fee
  • Technical amendments related to the posting of a Director’s contact information and declaration of cannabis-related offences under applicable federal law by long-term care staff and volunteers

 https://www.ontariocanada.com/registry/view.do?postingId=26946&language=en

 

  1.            Regulation 552: General, Health Insurance Act

Regulation 552 is amended to make it clear that an insured person receiving in-patient services at a private hospital is entitled to receive accommodation and meals at the standard or public ward level at no extra charge.

http://www.ontariocanada.com/registry/view.do?postingId=26566&language=en

 

  1.            Regulation 38/18 – Improvements to the Ministry of Transportation’s Medical Reporting Program

 Regulation 38/18 amended the mandatory reporting requirements to provide clear direction to the medical community on what types of conditions of patients, 16 years of age or older, must be reported to the Ministry of Transportation.

https://www.ontariocanada.com/registry/view.do?postingId=24751&language=en

 

  1.            Regulation 268/18 made under the Smoke-Free Ontario Act, 2017

 This regulation responds to the changing landscape related to tobacco, vapour products and medical cannabis.

https://www.ontariocanada.com/registry/view.do?postingId=26469&language=en

 

Articles of Interest

 

Opioids

Toronto Board of Health votes to lobby Ottawa to decriminalize all drugs

 

Marijuana

Disability benefit recipients denied medical marijuana coverage

 

Privacy

Ottawa Hospital fires employee after privacy breach involving 30 patients

Thousands of patient records held for ransom in Ontario home care data breach, attackers claim

 

Health Care

Gene tests can provide health clues – and needless worry

Striking staff to demand Ontario improve wages for private health care workers

Ottawa clinic warns 4,600 patients of hepatitis, HIV risk over unclean equipment

Busting the myth of bloated health care bureaucracy

Premier Doug Ford promises sex-ed curriculum consultations will be largest in Ontario history

 

Wettlaufer Inquiry

Ontario’s chief coroner testifies at Wettlaufer inquiry

 

Professional Misconduct

Sudbury doctor accused of sexual abuse to face disciplinary committee

Lawyer who claimed he was voted ‘No. 1 in Client Satisfaction’ hit with misconduct finding

Changes to doctor misconduct records still weeks away

 

What’s happening in our city this weekend:

Things to do this weekend in Toronto

 

Ontario’s Fairness in Procurement Act, 2018

In response to the “Buy American” policies enacted in the United States, the Ontario government has responded with the Fairness in Procurement Act, 2018 to protect Ontario-based businesses and suppliers.

The Act came into force on April 1, 2018. This Act reduces procurement opportunities for suppliers from “Offending American Jurisdictions”, which means a jurisdiction of the United States of America that has been designated by a regulation (“OAJ”). Ontario has the power to enact regulations to target those states that have adopted or enacted legislation that is discriminatory or prevents Ontario suppliers from participating or succeeding in procurement processes.

This Act applies to broader public sector entities such as hospitals, colleges, universities, and children’s aid societies, and any other entity prescribed by the regulation (“BPS Entities”), as well as government entities such as the Crown, public bodies, the Independent Electricity System Operator, and the Ontario Power Generation (“Government Entities”).

Broad Powers by the Government of Ontario under the Act

The objective of the Act is to defend the province’s economic interest and protect the interests of Ontarians and Ontario businesses. The Act provides broad powers to the Government of Ontario to respond proportionally to discriminatory procurement practices enacted by the United States.

If a supplier from an OAJ participates in an Ontario procurement process initiated by BPS Entities or Government Entities, that foreign supplier si subject to policies, sanctions, or requirements as set out in the regulations, such as:

  • Exclusion from participating or being awarded procurement contracts
  • Providing additional information to Government Entities or BPS Entities
  • Meeting additional requirements when participating in procurement processes
  • Proposals being subject to additional or more stringent evaluation criteria than applies to other proposals.

Such regulations would require Government Entities or BPS Entities to impose such measures on suppliers from OAJs. However, BPS Entities and Government Entities may obtain exemptions from the Act and its regulations.

The Act also grants broad powers to void a procurement contract if such contract or the procurement process contravenes the Act or a regulation made under the Act. It also stipulates that if there are any conflicts with any other legislation, the Act would prevail.

Under the Act, every regulation made under the Act must be reviewed at least once every four years after it is made until it is revoked.

If the OAJ removes offending policies and legislation, the responding regulation will be revoked by the Ontario government. For example, the Ontario government had initially sought public consultations for a proposed regulation responding to the policies enacted by Texas, restricting the use of iron and steel from Texas, related to any construction, remodeling, or altering of any building, structure, or infrastructure, or supply of material. However, the province has decided to not move forward with the proposed regulation in response to the positive advocacy efforts in Texas, which illustrates that the province will only take retaliatory actions against discriminatory procurement practices from OAJs.

O.REG 117/18: Suppliers from New York

Currently, O.REG 117/18 is the only regulation enacted under the Act. The regulation designates New York as an OAJ, which governs the procurement contracts related to structural iron entered into by suppliers from that state. This is in response to the New York Buy American Act, which prevents Ontario iron suppliers participating in procurement for public works contracts for surface roads or bridges.

O.REG 117/18 does not apply to the BPS Entities. It applies only to Government Entities’ procurement processes for construction, reconstruction, alteration, repair, maintenance, or improvement of a surface road or bridge where the value of the contract is expected to be greater than $US1 million. The regulation prevents the procurement of any structural iron in the performance of a procurement contract and incorporation into any surface road or bridge from a supplier from New York.

What should Procuring Entities in Ontario Do?

Government Entities must review how O.REG 117/18 will impact their procurement policies and procedures. It is unclear as to how many more regulations will be passed under this Act, but if more American states enact “Buy American” policies, it can be expected that Province of Ontario will respond proportionally by creating regulations to protect Ontario suppliers and businesses.

Procuring entities in Ontario must be diligent in keeping abreast of any current and proposed regulations to determine how it will affect their organization’s procurement policies and practices to ensure its compliance with the Act.

If you require assistance regarding your organization’s procurement policies and procedures or further information, please contact: Pamela Seto at pseto@ddohealthlaw.com.

The FHT/FHO Relationship: Put it in Writing

The relationship between a Family Health Team (“FHT”) and a Family Health Organization (“FHO”) is often difficult to understand and to navigate.

  • In theory, FHTs and FHOs operate and provide services to shared patients harmoniously while maintaining separate streams of business (e.g., each has separate employees, separate expenditures, separate lease agreements, etc.).
  • In practice, the division between the operation of a FHT and a FHO is complicated and entangled; often the two organizations share employees, expenditures, premises, policies, equipment, supplies, and leadership (e.g., Board of Directors).

With so much overlap, a clear and proper allocation of resources and expenses between the parties can be difficult, and many FHTs and FHOs choose to operate based on a verbal agreement as opposed to reducing their expectations to writing.  The problem with verbal agreements is that they are unwritten and subject to each party’s recollection. Therefore, they lack clarity and certainty. They can change as personnel within the organizations change. And should a disagreement arise, they are worth very little in the midst of a dispute.

Why a written agreement is not only advisable but essential …

Consider implementing a written agreement as between your FHT and its affiliated FHO(s) for the following reasons:

  1. FHT Funding Agreement

Although it is not an express requirement of the FHT – Ministry of Health and Long-Term Care funding agreement (“Funding Agreement”) that the relationship between the FHT and the FHO be reduced to writing, in our opinion the expectation is that this is the case. The Funding Agreement requires:

  • FHTs to be “affiliated with” a FHO, and that each physician member of the FHO agrees to such affiliation. Without a written agreement in place, evidencing this requirement can be difficult.
  • Funds provided to the FHT via the Funding Agreement to be spent exclusively as budgeted and in carrying out the FHT’s service plan, with the implication being that such funds are not to be expended on FHO operations. A written agreement with clear mechanisms for reimbursement and division of expenditures as between the FHT and the FHO is highly recommended to evidence the FHT’s compliance with this funding requirement.
  1. Privacy Obligations

As health care providers, the FHT and the FHO are subject to privacy and security requirements under the Personal Health Information Protection Act (“PHIPA”). A source of confusion for many FHTs and FHOs is the designation of either or both as the “health information custodians” – being the party or individual who effectively “owns” the patient and the patient’s records. Unfortunately, the question usually arises following a privacy breach, and therefore, under the watchful eye of the Information and Privacy Commissioner of Ontario (“IPC”).  The IPC in its decisions has made it clear that in multi-party health care settings (such as a clinic run by a FHT and a FHO), the parties need to formally and clearly document their relationship from a privacy perspective in order to establish roles and responsibilities for each. In the unfortunate occurrence of a privacy breach, you do not want to be in a position of finger-pointing as to who is responsible for your patient’s personal health information. The IPC is unlikely to entertain any such finger pointing, and you can expect that there will be disagreement between the parties as to the terms of any purported verbal agreement.

  1. Clarity

As we have previously alluded to, clarity as between the rights and obligations of the FHT and the FHO is essential. Especially in times of conflict, the parties will need a clearly written agreement to govern their relationship and settle any disputes. A verbal agreement offers little certainty and often becomes the source of disagreement between the parties.

Next Steps

We have assisted many FHTs and FHOs in putting in place a written agreement to govern their unique relationship – from a services perspective and a privacy perspective. We would be happy to learn about your current verbal agreement and assist you in putting together a written agreement that is aligned with your legal obligations and your current practices. If you have a written agreement in place, consider whether it requires any updates in order to align it with your current practices.

If you have not turned your minds to who exactly is the health information custodian, as between the FHO, the physicians and the FHT – please call us immediately. This is dangerous and untenable: mdeiana@ddohealthlaw.com.

DDO Health Law Update

July 13, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

 

Parliament has resumed. No new bills of interest.

 

Proposed Regulations

 

No new regulations of interest.

 

Articles of Interest

 

Opioids

Toronto’s chief medical officer calls for decriminalization of all personal drug use

 

Health Care

Ford uses throne speech to signal dramatic changes that loom for Ontario

Garron family donates $10-million to St.Joseph’s Health Centre in Toronto

A year ago Christine Elliott was a patient of the health system she now oversees as minister

Judgment-free mobile clinic will provide health care to hard-to-reach women

 

Professional Misconduct

Kitchener neurologist faces hearing over allegations of sexual misconduct

 

Mental Health

U of T to vote on controversial mental health absence policy

 

Privacy

Health Canada ordered to release confidential drug company data on HPV vaccines

Protect privacy of foster children

How activists are fighting back against facial recognition

 

What’s happening in our city this weekend:

Things to do this weekend in Toronto

It will be peak patio weather this weekend

 

 

 

Government of Ontario’s Bid Dispute Resolution Process for Broader Public Sector Organizations

As per the Broader Public Sector (“BPS”) Procurement Directive, public sector organizations such as hospitals, school boards, universities, colleges and children’s aid societies must outline bid dispute resolution procedures in their competitive procurement documents, which must be compliant with Ontario’s trade commitments.

Under the Canadian Free Trade Agreement (“CFTA”) and the Canada-European Union Comprehensive Economic and Trade Agreement (“CETA”), a supplier is able to challenge a procurement on the basis that it was not conducted in accordance with the applicable trade agreement. A complaint process is required under CFTA and CETA to properly address and resolve a complaint.

Current process only applicable to OPS entities

The Government of Ontario’s Bid Dispute Process currently available on the Ministry of Government and Consumer Services (the “Ministry”) website responds only to complaints from vendors participating in Ontario government procurement processes. This bid dispute resolution process is not available to BPS public sector organizations. Supply Chain Ontario has confirmed that this process is only available to ministries and agencies that are required to follow the Ontario Public Sector Procurement Directive.

What do BPS entities do?

The Ontario government is currently developing a revised bid dispute resolution process that can be utilized by all organizations covered by any trade agreements.  It is anticipated that it will be available to all procuring entities in July 2019.

In the interim, Supply Chain Ontario has advised that BPS public sector organizations establish their own bid dispute resolution process using the Ministry’s Bid Dispute Resolution Guide for Public Sector Organizations (“Guide”). The Guide is meant to provide assistance to public sector organizations that are subject to Ontario’s trade agreements to develop their own trade-related bid dispute resolution process. Certain requirements must be provided for in the bid dispute resolution process such as using an independent and impartial administrative body to review procurement complaints.

This is fine in theory, but in practice how do individual BPS organizations afford to engage an independent party to review every vendor dispute made?

Until the Ontario government’s revised bid dispute process is available, your organization should review its existing procurement bid dispute resolution policies and procedures, or establish a procurement bid dispute resolution process using the Guide if one is not already in place to ensure it is compliant with Ontario’s trade agreements. Note that if your organization fails to meet the requirements for trade-related bid disputes, vendors have no direct recourse against you. The Province of Ontario could face financial penalties for failure to comply applicable trade agreements.

Expected future state when BPS process prepared

Once the Ontario government’s revised bid dispute resolution process is available, procuring entities will have the following options:

  1. Continue using the procuring entity’s existing bid dispute resolution process (as long as it is current and compliant with Ontario trade agreements)
  2. If there is not an existing bid dispute resolution process, establish their own process that is compliant with applicable Ontario trade agreements
  3. Use the Ontario government’s revised bid dispute resolution process to deal with procurement complaints and dispute from suppliers.

The Ontario government’s revised bid dispute resolution process is not mandatory, but if the procuring entity choses to use the government’s process, it is expected that it will comply with all of the applicable requirements related to its use.

 

If you have any questions related to the Bid Dispute Resolution Guide for Public Sector Organization and Ontario’s trade agreements, please reach out to Pamela Seto at pseto@ddohealthlaw.com.