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DDO Health Law Update

By Pam Seto on November 8, 2019

Posted in Legislative Updates, New Legislation

November 8, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

Bill 138, Plan to Build Ontario Together Act, 2019

This Bill introduced by Hon. Rod Philips, Minister of Finance, was carried on First Reading on November 6, 2019. The Bill enacts and amends several acts:

Schedule 3 – Cannabis Control Act, 2017
- This Schedule amends sections 20 and 23 of the Act respecting approved youth education or prevention programs under the Act.
Schedule 4 – Cannabis License Act, 2018
- This Schedule makes various amendments respecting the sale of cannabis in accordance with the Act. Amendments are made to permit online and telephone purchase of cannabis from cannabis retail stores.
Schedule 5 – Child, Youth and Family Services Act, 2017
- This Schedule amends the CYFSA to allow a justice of the peace to issue a warrant authorizing a peace officer to bring a child to a place of safety in circumstances involving the child leaving or being removed from the care of a child welfare authority.
Schedule 15 – Health Insurance Act
- There are various changes which include rules concerning health cards; records and information; power of the General Manager to refuse pay claims for services; and new rules for hearings by the Appeal Board.
Schedule 19 – Independent Health Facilities Act
- Numerous changes to the Act, which include new rules for issuing of licenses and hearings by Boards and appeals from its decisions.
Schedule 28 – Ontario Drug Benefit Act
- Section 6 of the Act is amended to require the executive officer to deduct from the amount the executive officer pays to an operator of a pharmacy an amount determined in accordance with the regulations. The Act is also amended to allow LGIC to make regulations governing the manner in which the executive officer determines any additional amount to be subtracted.
Schedule 30 – PHIPA
- The following are some of the proposed changes to PHIPA:
  - Using PHI that been de-identified to identify an individual is prohibited, subject to certain exceptions.
  - The IPC is given the power to order the return of records of PHI that were improperly collected, used or disclosed.
  - Regulation making powers are established concerning the role of Ontario Health under the Act, including prescribing under what circumstances a person or entity or group of persons or entities designated under subsection 29(1) of the Connect Care Act, 2019 may collect, use and disclose PHI.
- The Connecting Care Act, 2019 is amended to extend the protection from liability provided for actions under the Act to prescribed provisions of PHIPA and its regulations.
Schedule 37 – Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019
- The Schedule enacts the Act, and the following are some of the changes:
  - The Act provides that government entities, broader public sector entities and health sector entities must comply with regulations governing how they carry out supply chain management and requiring them to implement specified vendor performance standards and practices.
  - The Act permits LGIC to designate or create a supply chain management entity to provide or support supply chain management on behalf of other entities.

More Information: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-138

Proposed and Approved Regulations

Amendments to Ontario Regulation 386/99 under the Home Care and Community Services Act, 1994 (HCCSA) and Ontario Regulation 201/96 under the Ontario Drug Benefit Act to enable access to end-of-life care for out of province patients moving to Ontario.

The Ministry is proposing to amend Regulation 386/99 to remove the requirement to be an insured person under the Health Insurance Act in the Regulation for professional services, personal support services and homemaking services to persons who meet the following criteria:

They were residents of another Canadian province or territory where they have public health insurance coverage.
They move directly to Ontario from the other province or territory for the purposes of receiving end-life care in the community.
They meet the other eligibility criteria in Regulation 386/99 for the professional services, personal support services and/or homemaking services they are seeking.

The Ministry is proposing to make consequential amendments to O. Reg 201/96 to ensure recipients of certain professional services under HCCSA who do not have OHIP coverage are eligible for the ODB Program like other recipients of certain professional services who do not have OHIP coverage.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30947&language=en

Comment Due Date: Dec 20, 2019

Ontario Newsroom

Ontario Expanding End-of-Life Care in Durham

Ontario Investing in New Centre for Brain and Mental Health Care

Articles of Interest

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Province holding up doctors’ Blind River transfer

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Remembrance Day (Monday, November 11)

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DDO Health Law Update

By Nareh Ghalustians on November 1, 2019

Posted in Legislative Updates, New Legislation

November 1, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

Bill 116, Foundations for Promoting and Protecting Mental Health and Addictions Services Act, 2019

This Bill introduced by Hon. Christine Elliott, Minister of Health, was carried on First Reading on May 27, 2019. On October 31, 2019, it was at Second Reading. The Bill enacts two Schedules:

Schedule 1 – Mental Health and Addictions Centre of Excellence Act, 2019
- Ontario Health shall establish and maintain within Ontario Health, a Mental Health and Addictions Centre of Excellence.
Schedule 2 – Opioid Damages and Health Care Costs Recovery Act, 2019
- This Schedule enacts the Opioid Damages and Health Care Costs Recovery Act, 2019, and makes a complementary amendment to the Limitations Act, 2002.
- The Act gives Ontario a direct and distinct action against manufacturers and wholesalers of opioid products to recover costs of health care benefits caused or contributed by an opioid-related wrong.
- Ontario can recover the cost of health care benefits with respect to particular individual insured persons or on an aggregate basis, with respect to a population of insured persons.
- The Act also changes the rules with respect to the limitation periods. Section 6 of the Act permits an action for damages or for recovery of the cost of health care benefits, alleged to have been caused or contributed by an opioid-related wrong, to be commenced by Ontario before, or within 15 years after, that section comes into force.

More Information: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-116

Proposed and Approved Regulations

Ontario Regulation 275/94 – Registered Nurse (RN) Prescribing: Proposed regulatory amendments to Ontario Regulation 275/94 (General), Part III (Controlled Acts) and Part V (Delegation) under the Nursing Act, 1991: The College is proposing amendments to Ontario Regulation 275/94 (General) made under the Nursing Act, 1991 to authorize RNs to prescribe individual drugs as well as those related to immunization, contraception, wound care, travel health, smoking cessation, and over-the-counter medications. The proposed regulations for RN prescribing specify: (1) the conditions RNs must meet to prescribe and communicate a diagnosis for the purposes of prescribing; (2) drugs and categories from which RNs can prescribe; and (3) practice expectations and parameters upon which RNs are permitted to prescribe.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30571&language=en

Comment Due Date: November 17, 2019

Ontario Regulation 275/94 – Initiation of Psychotherapy by Registered Nurses and Registered Practical Nurses: The controlled act of psychotherapy was proclaimed on December 30, 2017, adding it to the list of controlled acts in the RHPA. At the same time, a two-year transitional period, ending December 31, 2019, was established. Beginning December 31, 2019, only physicians, nurses, occupational therapists, psychologists, psychotherapists and social workers and social service workers who are authorized by their respective regulatory college will be able to perform the controlled act of psychotherapy. These amendments proposed by the College would allow Registered Nurses (RNs) and Registered Practical Nurses (RPNs) to independently initiate the controlled act of psychotherapy without an order from a physician or nurse practitioner after December 31, 2019, if they meet the conditions of the regulation.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30587&language=en

Comment Due Date: November 17, 2019

Ontario Regulation 493/17 – Proposed amendments to the Food Premises Regulation 493/17 under the Health Protection and Promotion Act: Currently all food premises operators, with some exceptions, must meet structural and equipment requirements under the Food Premises Regulation 493/17 under the Health Protection and Promotion Act. The Ministry is proposing to exempt food premises that serve low risk foods from certain structural and/or equipment requirements, which would be similar to current exemptions for pre-packaged low risk foods and hot beverages. The Ministry is also proposing to exempt food premises that serve low risk food from the requirement to have a trained food handler on-site during operation.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30848&language=en

Comment Due Date: November 27, 2019

Ontario Regulation 493/17 – Proposed amendments to the Food Premises Regulation 493/17 under the Health Protection and Promotion Act: Currently the Food Premises Regulation does not, subject to limited exceptions, allow live animals in any room where food is prepared, processed, packaged, served, transported, manufactured, handled, sold, offered for sale or displayed. The Ministry is proposing an exemption that will allow food premise operators the discretion to permit dogs in outdoor eating areas of food premises. The Ministry is also proposing an exemption to allow dogs in a food premise where only pre-packaged or low-risk food items, or both, are manufactured, processed, prepared, stored, handled, displayed, distributed, transported, sold or offered for sale, provided the dogs are in an area of the food premise where food is served, sold, offered for sale or displayed.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30849&language=en

Comment Due Date: November 27, 2019

Ontario Regulation 136/18 – Proposed Amendments to Ontario Regulation 136/18 (Personal Service Settings) made under the Health Protection and Promotion Act: Proposed regulatory changes would (1) exempt premises that only perform barbering and hairdressing services from Section 5 of the Regulation requiring PSS operators to obtain the name and contact information of the person seeking the service before providing the service – in the event of an accidental exposure name and contact information would be required to be recorded and kept in accordance with Section14(1)4; and (2) exempt premises that only perform barbering and hairdressing services from requiring a dedicated sink for reprocessing equipment (e.g., cleaning of tools) under Section 8(3) of the Personal Service Settings Regulation – these premises would still require a dedicated handwashing sink.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30830&language=en

Comment Due Date: November 27, 2019

Ontario Regulation 268/18 – Smoke-Free Ontario Act, 2017 Regulation: The Ministry is proposing amendments to Ontario Regulation 268/18 to amend the inventory/sales requirements for existing tobacconists (specialty tobacco stores). The Ministry is also proposing technical amendments to Ontario Regulation 268/18 to allow for the posting of signs that have Ontario’s 2019 Trillium logo.

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30829&language=en

Comment Due Date: November 27, 2019

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DDO Health Law Update

By Pam Seto on October 25, 2019

Posted in Legislative Updates, New Legislation

October 25, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

The Ontario Legislature has adjourned until October 28, 2019.

Proposed and Approved Regulations

No new proposed and approved regulations of interest.

Ontario Newsroom

Ontario Investing in Health Care Research

Articles of Interest

Ontario Health teams

Peterborough seeks Ontario Health Team

Health Care

Municipalities pushing back over Ontario health care cuts

Should nurses be allowed to prescribe certain drugs? Ontario wants to know

Vaccines delayed as province’s overcrowded hospital brace for flu season

Charter fight over denial of liver transplants to alcohol abusers can proceed

Artificial Intelligence

Using A.I. to Transform Breast Cancer Care

Things to do this Weekend

Things to do this weekend in Toronto

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Toronto Raptors Championship Ring Ceremony – Oct 22, 2019

DDO Health Law Update

By Pam Seto on October 18, 2019

Posted in Legislative Updates, New Legislation

October 18, 2019: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

The Ontario Legislature has adjourned until October 28, 2019.

Proposed and Approved Regulations

O. REG 275/94

The proposed amendments to Part III (Controlled Acts) and Part V (Delegation) under the Nursing Act, 1991 include:

Specifying the conditions that registered nurses (“RNs”) must meet to prescribe and communicate a diagnosis for the purpose of prescribing; drugs and drug categories from which RNs can prescribe; and practice expectations and parameters which RNs are permitted to prescribe.
Providing RNs with authority to dispense and administer any medication they are authorized to prescribe.
Providing RNs and registered practical nurses (“RPNS”) with authority to dispense and administer any medication that is prescribed by a RN who is authorized to prescribe.
Completing additional education that is approved by the College’s Council in order for a RN to prescribe drugs and to communicate a diagnosis for the purpose of prescribing.

Comments deadline: November 17, 2019

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30571&language=en

O. Reg 275/94

College of Nurses of Ontario are proposing amendments to the regulation, which will allow RNs and RPNs to independently initiate the controlled act of psychotherapy without an order from a physician or nurse practitioner after Dec 31, 2019 if they meet the conditions of the regulation. These conditions, include but are not limited to:

RN or RPN having the knowledge, skill and judgment to safely perform the controlled act and that the RN or RPN has determined the individual’s condition warrants performance of the controlled act.
RNs and RPNs are responsible for adhering to the standards of the profession in all aspects of their practice and this expectation will continue to apply to RNS and RPNs performing the controlled act of psychotherapy.

The amendments are intended to ensure patients receiving psychotherapeutic services from RNs and RPNs have continued access to care.

Comments Deadline: November 17, 2019

More Information: https://www.ontariocanada.com/registry/view.do?postingId=30587&language=en

Ontario Newsroom

Ontario Providing More Support for Hospitals

Ontario Expanding Home and Community Care in York Region

Ontario Expands Support for Addictions Treatment in Kitchener

Palliative care hotline coming as part of new Guelph health team

Headwaters hospital hires interim CEO Kim Delahunt after departure of Stacey Daub

Articles of Interest

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Best Practices Checklist for Drafting a Data Sharing Agreement

By Pam Seto on October 15, 2019

Posted in Contracts, Privacy

With the rapid advancements in technology and the breadth of data available, public bodies, organizations, and agencies are increasingly sharing information to increase knowledge, conduct research, and inform policies and procedures about public issues.

In Ontario, data sharing between organizations is governed by privacy legislation such as the Personal Health Information and Protection Act (“PHIPA”) and Freedom of Information and Protection of Privacy Act (“FIPPA”). In some cases, it is a statutory requirement that a written data sharing agreement (“DSA”) be established between the parties to set out the terms and conditions under which information is shared:

to ensure compliance with applicable laws
to ensure the proper safeguards are implemented to prevent unauthorized use, collection and disclosure.

In any event, it is considered best practice that data partners develop a written DSA when sharing information to protect data.

What is in a DSA?

Data sharing can be complex depending on the data partners, type of information, and the flow of information. This is why a DSA must be carefully drafted to ensure that your organization is compliant with applicable privacy laws and that proper safeguards are in place to protect your information. If your organization is involved in the collection, use, and disclosure of information you should consider the following ten questions when drafting a DSA:

Who are the parties that will be collecting, using, and disclosing data?
- Who will be disclosing or receiving the data?
- If governed under PHIPA, identify if the party is a:
  1. Health Information Custodian (“HIC”)
  2. Health Information Network Provider (“HINP”)
  3. Electronic Service Provider
  4. Prescribed Entity
  5. Prescribed Registry
  6. Agent

- Under PHIPA, a party can wear multiple hats (i.e. a party can be both a HIC and a HINP and would have to comply with the obligations as set out in the Act).
- Will there be a secondary use or disclosure of the data by the recipient?

What is the purpose of data sharing between the parties?
- If you are disclosing data, you must consider how the receiving party is going to use your data, and for what purpose.
- Data cannot be collected any more than reasonably necessary to serve the purpose. It is important that DSAs make it clear as to why a party is collecting or using the data.
- For example, some common purposes under PHIPA include:
  1. Research
  2. Planning, management and analysis of the health system

What information is being shared?
- Is it personal health information?
- Is it personal information?
- Is it de-identified data?
- Is it other information that is not governed by privacy legislation?
- Is the information going to be linked to other data sets?
What is the legal authority for collection, use and disclosure of the data? What is the governing legislation?
- Under what legislation are the parties able to collect, use, and disclose data? This is often dependent on who the party is, and what type of information is being shared.
How will the data be shared between the parties?
- Will the data be disclosed only from one party to another? Or will it be disclosed both ways?
- Will there be third party disclosures?
- It is often helpful to include a flow chart to illustrate how the data is being shared especially in complex situations where there are multiple parties, and uses.
What are the data elements, data sets, time frame, and collection rationale?
How will the data be transferred?
- What secure method of transfer will be used? Will it be electronic or hard copies?
What is the frequency of data transfer?
- Is it a one-time disclosure or on-going disclosure (i.e. annual disclosure of information)?
How will the data be retained or destroyed?
1. In some cases, the data is either returned to the originating party or destroyed after the DSA is terminated or expired. This should be clearly stated in the DSA.
What privacy and security safeguards are in place by the receiving party to ensure your data is protected against unauthorized use?
- For example:
  1. Administrative Safeguards: Have in place robust policies and procedures governing authorized users collection, use and disclosure of data; establish privacy breach protocols; provide on-going privacy and security training; and monitoring compliance.
  2. Technical Safeguards: Encryption for portable devices; strong passwords; firewalls; and anti-malware scanners.
  3. Physical Safeguards: Use alarm systems and lock rooms where equipment is used to send or receive information; keep portable devices in a secure location, such as a locked drawer or cabinet.

Note that this blog does not constitute legal advice – seek assistance from legal counsel. For assistance in drafting a data sharing agreement, please contact Pamela Seto at pseto@ddohealthlaw.com.