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.

Conducting Supplier Debriefings

The Broader Public Sector Procurement Directive entitles unsuccessful proponents participating in a procurement valued at $100,000 or more to a supplier debriefing. A debriefing is an opportunity for a proponent to:

  • discuss with the purchaser the strengths and weaknesses of the proponent’s submission in relation to the evaluation criteria of the procurement;
  • ask questions related to the procurement process; and
  • provide feedback on how the procurement process and the purchaser’s practices could be changed or improved.

A purchaser must include in the documents that initiate a procurement details about supplier debriefings, including the process by which a proponent can request a debriefing. A purchaser must provide proponents with at least 60 days following contract award notification to request a debriefing.

A debriefing should be a process that allows both the purchaser and a proponent to gain valuable input from the other. However, if not conducted properly, a debriefing could lead to additional questions or process-related challenges from a proponent, which would likely mean greater costs being incurred by the purchaser for staff time and legal fees.

To ensure that your organization carries out debriefings efficiently, effectively, and in keeping with applicable regulatory and contractual obligations, your debriefing processes should be formalized to ensure consistency and your staff should be educated on restrictions imposed by applicable procurement requirements and contractual obligations.

DDO is experienced in helping our clients to:

  • establish straight-forward and effective processes for addressing debriefing requests;
  • ensure that their staff are up-to-date on current legislative and regulatory requirements related to debriefings;
  • create an agenda for debriefings that will allow for consistency across debriefings and contribute to the (a) equitable treatment of proponents and (b) transparency of the process;
  • formalize document management and record-keeping procedures for debriefings;
  • train procurement staff on leading a debriefing and on identifying questions that are out of scope of a debriefing; and
  • educate staff on the confidentiality obligations that a purchaser owes to the proponents in a procurement process.

If you are interested in DDO providing your organization with advice on debriefings, or if you have any specific questions related to debriefings, please do not hesitate to reach out to me: mgleeson@ddohealthlaw.com

DDO Health Law Update

July 6, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

 

New bills will be added after the new Parliament begins.

 

Proposed Regulations

 

No new regulations of interest.

 

Articles of Interest

 

Government

Doug Ford reveals 21-member cabinet featuring deputy premier Christine Elliott

 

OHIP+

OHIP+ no longer covers kids, young adults with private insurance, new health minister says

Ford Government Making OHIP+ More Cost-Effective

What Ontario changes to OHIP tell us about the future of nationals

 

Wettlaufer Inquiry

Six things we’ve learned so far at the Wettlaufer inquiry

 

Privacy

How does California’s tough new data privacy law affect Canadian businesses?

 

What’s happening in our city this weekend:

Things to do in Toronto

 

Educating Your Procurement Team

“An ounce of prevention is worth a pound of cure.”

One good way to help your organization avoid claims related to a procurement process is to provide some simple training to your staff members who will be participating in the procurement process. In many cases your internal evaluation team will include individuals for whom procurement is not an everyday part of their jobs. These staff members will likely be unaware of the basic principles, rules, and processes with which your organization must carry out its procurement activities.

DDO believes that there is significant value in educating your internal procurement team on such things as:

  • conflicts of interest;
  • treatment of incumbent vendors;
  • the dangers of politicizing procurement decisions;
  • confidentiality;
  • communication with proponents during the procurement process;
  • process transparency; and
  • equal treatment of vendors.

If your staff are unfamiliar with the above-listed ideas, which are essential for a properly run procurement process, a staff member could unwittingly put your organization in breach of applicable procurement rules. Such a breach could force you to re-do the relevant procurement process and put your organization at risk of a legal claim brought by an unhappy proponent.

DDO can help you to create simple and efficient tools to ensure that your procurement team has knowledge of (or, as applicable, are simply reminded of) essential procurement rules prior to their participation in a procurement process.

Contact me: mgleeson@ddohealthlaw.com