Ontario Health Teams and Governance

Where are we in the OHT application process?

With the deadline to submit self-assessments now passed, the next phase in the Ontario Health Team (OHT) process is the selection by the Ministry of Health (Ministry) of groups of healthcare providers and organizations to submit full OHT applications.

Per the Ministry’s website, invitations to submit full OHT applications are expected to occur early July (extended from early June), with a subsequent deadline to submit the full application in September 2019.  The Ministry has said in its Guidance Materials that the full OHT application form will be provided to those groups selected for this next stage of the OHT process.

If invited to move forward to the full application stage, the organizations and providers (who will form the OHT) will be expected to demonstrate their ability to meet the readiness criteria identified by the Ministry in the Guidance Materials. One criterion is a commitment amongst the group of organizations and providers to formalize relationships for the proposed OHT’s structure and governance model. The Ministry has indicated in the Guidance Materials that:

providers that form Ontario Health Teams will be free to determine the governance model that works best for them, their patients, and their communities. Regardless of what governance model an Ontario Health Team adopts, it must be conducive to coordinated care delivery for patients, support achievement of performance targets, and enable the achievement of accountability objectives.

Governance is critical

The Ministry has also indicated that, at maturity, OHTs will receive an integrated funding envelope, and OHTs will be expected, as part of their governance structure, to demonstrate their ability to manage and oversee the integrated funding envelope. It will therefore be a critical exercise for the organizations and providers forming the OHT to determine how the OHT will be governed, as this governance model will have an impact on the distribution of the funding envelope amongst the members of the OHT.

FHT Boards need to consider …

For smaller organizations such as FHTs, it will be imperative that their Boards of Directors fully understand the implications of joining an OHT from a governance perspective. For example, FHT Boards should consider the following questions:

  • Will one member of the OHT become a leader or designated paymaster for the integrated funding envelope? If so, how will this leader/paymaster be determined (e.g., will the choice be dictated by size and influence of the member organization?)
  • How will a unified governance structure for the OHT impact the FHT’s ability to self-govern? For example, certain structures such as amalgamations and shared boards would remove the ability of the FHT to self-govern entirely.
  • How will FHTs ensure that they are adequately represented in the governance structure selected for the OHT? The healthcare organizations and providers expected to form the OHTs will likely differ in size, the type of care provided, and patients cared for. It will be important for these organizations and providers to maintain their voice within the greater OHT structure.

Setting priorities

Before FHTs go down the path of submitting a full OHT application package and deciding (along with other members of the OHT) on a structure and governance model for the OHT, it is a worthwhile exercise for FHT Boards of Directors to:

  • identify priorities for the FHT
  • come to the OHT table with a plan to ensure that these priorities will not be lost or overshadowed in the greater OHT structure.

How we can help

DDO has provided advice to many FHT Boards of Directors on governance and can assist Boards in understanding how different structures and governance models will impact their ability to lead and govern the FHT once it is a part of the OHT.

For more information, please contact mdeiana@ddohealthlaw.com.

DDO Health Law Update

August 10, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

 

None of interest (unless zebra mussels are of interest to you – then lots).

 

Approved Regulations

 

No regulatory proposals and no new approved regulations.

 

Articles of Interest

 

Ontario has a psychiatrist shortage and needs to solve it to stop a mental health crisis: report

Read more…>

 

The Saudi-Canada crisis will damage people’s health

Read more…>

 

Organizations have a duty to keep personal health information secure

Read more…>

 

The patient experience in Ontario 2020: What is possible?

Read more…>

 

LGBTQ seniors fear renewed discrimination in long-term care

Read more…>

 

Appeal court ends secrecy of payments to Ontario’s top-billing doctors

Read more…>

 

Tory staffers continue to use applause to drown out reporters’ questions

Read more…>

 

What’s happening in our city this weekend:

Things to do this weekend in Toronto

 

“We are going to celebrate life”: Taste of the Danforth marks 25th year in wake of deadly shooting

Read more…>

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.

Important Developments on Police Record Checks

Initially enacted by the Ontario government in 2015, the Police Record Checks Reform Act, 2015 (the “Act”) has finally been proclaimed by the Lieutenant Governor to come into force on November 1, 2018.  In addition to standardizing requests for police record checks, the Act extends privacy protections to the individuals who are the subjects of police record checks (“subject individuals”) by (i) implementing a consent regime, and (ii) prescribing what can and cannot be disclosed in respect of each type of police record check requested.

Impact on your Organization

If your organization requests police record checks as part of its recruitment efforts, whether in respect of employees, volunteers, or volunteer Board members, you will want to refresh your policies and procedures to ensure that they align with the requirements of the Act.  Contravention of the Act is an offence liable to a fine of up to $5000.

Application of the Act

The Act applies to a “police record check”, which is a search of the records maintained within a police database in Canada (e.g., Canadian Police Information Centre database) and required to be conducted by persons (including organizations) in respect of a subject individual for the purposes of:

  • Hiring the subject individual for employment.
  • Engaging the subject individual for volunteer work.
  • Admitting the subject individual to an educational institution, a program, or a membership body.
  • Receiving goods and services from the subject individual or providing them to the subject individual.

The Act will not apply to certain types of searches, such as those in connection with an application for a change of name, an application for custody of a child by a non-parent, certain searches requested by a children’s aid society, and certain others that are listed in the Act and one of its accompanying regulations (“Exempted Searches”).

For some Exempted Searches, the application of the Act is simply delayed for a year and will apply to those searches on November 1, 2019.  Examples of Exempted Searches for which the application of the Act is delayed is a search requested by the Crown in Right of Ontario for appointing certain public servants under Part III of the Public Service of Ontario Act, 2006, or for screening a provider of goods or services to be awarded a contract to provide goods or services to a ministry or government agency.

Types of Police Record Checks

The Act creates three types of police record checks, each disclosing only the information permitted to be disclosed in the Schedule to the Act.  The types of police record checks are set out below in order of the amount of information disclosed (greatest to least):

  1. Vulnerable Sector Check
  2. Criminal Record and Judicial Matters Check
  3. Criminal Record Check

While there is variation amongst the types of police record checks and the information that is permitted to be disclosed, the following is a list of information that is not permitted to be disclosed for any type of check:

  • Summary convictions, if the request is made more than 5 years after the date of the conviction.
  • Court orders made under the Mental Health Act, Part XX.1 of the Criminal Code (Canada), or those related to withdrawn charges.
  • Certain restraining orders made against the subject individual.
  • Convictions for which a pardon has been granted (subject to exceptions).

The Act also specifies when “non-conviction information” can be disclosed. Subject to certain exceptions under the Act, this is information related to the subject individual being charged with a criminal offence which was subsequently dismissed, stayed, withdrawn, or resulted in a stay of proceedings or acquittal.  Non-conviction information may only be disclosed pursuant to a Vulnerable Sector Check if certain criteria listed in the Act are met (e.g., the criminal charge is one listed in the regulations under the Act, the alleged victim was a child or a vulnerable person, and there is a pattern of behaviour or incidents indicating a risk of harm to a child or a vulnerable person). The subject individual has an opportunity to request a reconsideration of any disclosure of non-conviction information.

Procedure for Police Record Checks

In order to standardize the request for and conducting of police record checks, the Act establishes the following procedures:

  • A written request for a police record check may be made by the subject individual or by a person or organization in respect of the subject individual.
  • The written request for a police record check must:
    • Specify the type of police record check being requested.
    • Include the written consent of the subject individual (such consent must be in respect of the particular check being requested).
    • Include any applicable fee.
  • The results of the police record check must first be disclosed to the subject individual, and to no other person.
  • If, after receiving the results, the subject individual provides written consent, the results may be provided to the person or organization that requested the police record check or other person or organization specified by the subject individual.
  • The individual or person that receives the results of a police record check on the consent of the subject individual shall not use or disclose the results except for the purposes for which it was requested or as authorized by law.

If you need assistance in updating your policies and procedures, contact me @ mdeiana@ddohealthlaw.com.