Application for judicial review of a decision of the General Manager of the Ontario Health Insurance Plan to refuse full payment of funds claimed by a physician for services rendered to patients under the provincial health care plan

Administrative law – Decisions of administrative tribunals – Government – Health Insurance Plan – Late-filed claims – Physicians and surgeons – Billing matters – Judicial review – Procedural requirements and fairness – Compliance with legislation – Ultra vires – Delay – Failure to provide reasons

Perlmutter v. Ontario (Ministry of Health and Long-Term Care), [2016] O.J. No. 1640, 2016 ONSC 2080, Ontario Superior Court of Justice – Divisional Court, March 31, 2016, F. N. Marrocco A.C.J.S.C.J.; J. M. Wilson and L. A. Pattillo JJ.

The applicant physician was a family physician who practiced in Ontario until 1996. Under the Health Insurance Act, R.S.O. 1990, c. H.6 (“HIA”), physicians are permitted to submit claims for payment for medical services rendered to patients to the General Manager of the Ontario Health Insurance Plan (“OHIP”). Section 18(3) of the HIA requires the General Manager to refuse to provide payment for claims submitted more than six months after the service is rendered unless there are extenuating circumstances, in which case the General Manager may exercise his or her discretion and make payment to a physician.

In January 2001, the applicant requested the General Manager consider claims for services he rendered to patients between 1993 and 1996. The General Manager considered there were sufficiently extenuating circumstances to consider providing payment for the physician’s late-filed claims. Payment of the claims was made subject to their meeting the current content and form requirements, as well as the eligibility, validity and assessment rules, and would be subject to any thresholds or clawbacks in place at the time the services were rendered. On that basis, the physician filed some 8,000 claims totaling over $570,000.

An initial review of the late-filed claims showed they suffered from a number of errors. The General Manager therefore requested that the applicant submit patient records for 90 randomly selected claims, of which the applicant submitted 86. Those records were found to be deficient in a number of respects, and the General Manager requested a second sample of 85 patient records. The applicant refused to provide the additional records, and requested a meeting with the General Manager. This request was refused. The applicant eventually requested the General Manager make her decision based on the first set of records submitted. The General Manager agreed, and made the decision to pay the applicant approximately $203,000 with respect to the claims.

The applicant sought judicial review of that decision, seeking an order directing the General Manager to pay the amount claimed in full, or in the alternative directing a reassessment of his claims by a Master of the Court or the Physician Payment Review Board. The applicant argued an amendment to the HIA which required the General Manager to pay claims made in the ordinary fashion and then seek repayment, incorporated as s. 18(4), meant the decision to withhold funds was ultra vires. He also argued the decision was unreasonable, as it was based on “misunderstandings, errors and false assumptions” found in the sample records he had submitted, and that the General Manager had failed to provide him with procedural fairness by failing to follow the regular statutory process, by failing to meet with him, and by failing to offer “cogent reasons” for paying him substantially less than was claimed.

In dismissing the application, the Court held that s. 18(4) of the HIA did not apply to payments made for late-filed claims considered by the General Manager pursuant to her discretion under s. 18(3), and as such the decision was not ultra vires. Further, it was entirely reasonable for the General Manager to come to a decision based on the sample records given the number of claims the applicant submitted, particularly in light of the fact that the applicant himself had refused to provide further records and had requested a decision be made solely on the sample already submitted. Finally, the Court found no breach of the duty of procedural fairness, holding the ordinary statutory process did not apply to claims considered under s. 18(3), that no meeting was required or could be reasonably expected, and that the reasons provided by the General Manager were more than adequate.

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