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:
- 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.
- 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.
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.
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: email@example.com.