Social Policy in Ontario

In this third bulletin of our series on Bill 74, The People’s Health Care Act, 2019, we discuss how the proposed Connecting Care Act, 2019 (the “Act”), if enacted, will:

• permit the Minister of Health and Long-Term Care (the “Minister”) to create new integrated care delivery systems (“ICDS”);
• authorize the Minister and the new health agency proposed by the Act, Ontario Health (the “Agency”), to integrate health service providers (“HSPs”) and ICDS; and
• create accountability mechanisms to monitor and manage ICDS and HSPs and other persons and entities that receive government funding.

The Act, which forms Schedule 1 to Bill 74, provides the Minister and the Agency with broad powers to integrate and track the accountability of Ontario’s health care system.  Though many of these powers are, in effect, similar to powers currently held by the Minister and local health integration networks (“LHINs”) under the Local Health System Integration Act, 2006 (the “LHSIA”), some important distinctions exist.

For an overview of Bill 74 and the Act, and for further details regarding the powers of Ontario’s proposed new health agency, Ontario Health (the “Agency”), refer to our first and second bulletins on Bill 74.

Integrations under Sections 31 and 33 of the Act

The legislative authority conferred upon the Minister and the Agency by the Act with respect to integrations under sections 31 (Integration by Agency) and 33 (Required Integration) of the Act,[1]respectively, extend to two groups: HSPs and ICDS. Accordingly, critical to understanding the significance of the powers of integration is an understanding of how these terms are defined.

Health Service Providers

Though the term “health service providers” is a carryover from the LHSIA, the term is defined differently under the Act than it is under the LHSIA. In particular, the Act:

• includes independent health facilities (“IHFs”) in the list of prescribed HSPs. As IHFs are not HSPs under the LHSIA, this change is of particular significance. For example, as  HSPs under the Act, IHFs may, for the first time, be the subject of a required integration order from the Minister;[2] and
• does not include a carve out from the definition of HSPs for any regulated health professionals or health profession corporations. This is distinct from the LHSIA which specifically excludes various regulated health professionals and health profession corporations from the definition of HSPs.

Integrated Care Delivery Systems

A significant aspect of the Act is its introduction of ICDS, which were described by the Minister as a means to improve access to services and patient experience by organizing health care providers as one coordinated team.

The Act gives the Minister authority to designate a person or entity, or a group of persons or entities, as an ICDS provided that the prescribed conditions are met:

1. the person, entity or group of persons or entities has the ability to deliver, in an integrated and co-ordinated manner, at least three of the following types of services:

• hospital services;
• primary care services;
• mental health/addictions services;
• home care or community care services;
• long-term care home services;
• palliative care services; and
• any other services to be prescribed by regulation; and

2.     any other prescribed conditions or requirements have been met.

Specific details regarding certain aspects of ICDS are absent from the Act, giving rise to numerous questions. For example:

• Will designation as an ICDS be voluntary or will the Minister have the authority to compel the prescribed persons and entities to accept such a designation? Though the Minister indicated to media that a number of groups have expressed interest in forming an ICDS, presumably not all persons and entities subject to the ICDS provisions will wish to be designated as such.  The Act makes it clear that parties can be forced to enter into service accountability agreements with the Agency once designated as an ICDS (or part of an ICDS),[3] but does not specifically address whether the government has the authority to require persons or entities to accept such a designation.
• Where an ICDS is formed of more than one person and/or entity, how will these parties formalize their relationship? If this relationship will be formalized through a contract, will the parties be required to use a prescribed form of contract or will they be free to negotiate the terms of the contract themselves?
• What specific rights and obligations will designation as an ICDS (or part of an ICDS) attract? How do these rights and obligations differ than those of HSPs?

The Act contemplates various regulations that, if made, may be of assistance in answering the above questions, including, for example, regulations:

1. exempting an ICDS[4] or any other person or entity from any provision of this Act or the regulations, and specifying circumstances in which the exemption applies; and
2. governing designations of ICDS, and prescribing conditions and requirements that must be met before such a designation may be made.

Types of Integrations

The Act contemplates three types of integrations:

1. integrations facilitated by the Agency;
2. integrations required by the Ministry; and
3. integrations initiated by an HSP and/or ICDS.

The definition given to “integration” by the Act mirrors the broad definition given to that term in the LHSIA and includes: co-ordinating services and interactions; partnering with another person or entity to provide services or in operating; transferring, merging or amalgamating services, operations, persons or entities; starting or ceasing to provide services; and ceasing to operate or to dissolve or wind up operations.

The Act imposes a positive obligation on the Agency, ICDS and HSPs, both separately and together, to identify opportunities for integration.

Integrations by the Agency

To effect an integration under the Act, the Agency is authorized to:

• provide or change funding that it has made available to an HSP or ICDS that receives funding from the Agency; or
• negotiate or facilitate the integration of persons or entities where at least one of the persons or entities is an HSP or ICDS; and
• integrate the services of: (A) HSPs or ICDS; or (B) an HSP or a ICDS and a person or entity that is not an HSP or a ICDS, but which supports the provision of health care.

The right of the government to integrate the health system in the above manner is not entirely new. The LHINs possess these same powers of integration (among other powers which are detailed below) in respect of HSPs under the LHSIA.

Integrations by the Minister

If considered to be in the public interest, the Minister may order one or more HSPs or ICDS that receive funding from the Agency to do anything to integrate the health system, including:

1. To provide all or part of a service or cease to provide part of a service.
2. To provide a service to a certain level, quantity, or extent.
3. To transfer all or part of a service from one location to another.
4. To transfer all or part of a service to or to receive all or part of a service from another person or entity.
5. To cease operating, to dissolve or to wind up its operations.
6. To amalgamate with one or more persons or entities that receive funding from the Agency.
7. To co-ordinate services with or partner with another person or entity that receives funding from the Agency.
8. To transfer all or substantially all of its operations to one or more persons or entities.
9. To carry out another type of integration of services that is prescribed.
10. To do anything or refrain from doing anything necessary for them to achieve anything under any of paragraphs 1 to 9, including to transfer property to or to receive property from another person or entity in respect of the services or operations affected by the decision

The powers set out in items 1-6 and 8-9 represent a hybrid of the powers of integration currently held by the Minister and the LHINs under the LHSIA in respect of HSPs.[5] While the power identified in item 7 is new, the Minister and the LHINs hold a similar power to the power set out in number 10 in respect of their rights of integration under the LHSIA.

The Minister’s power to require integration are not absolute and is subject to certain restrictions, which are similar to the restrictions imposed on integration decisions made under the LHSIA. For example, the Minister may not issue an integration order that:

• unjustifiably (by the standard of section 1 of the Canadian Charter of Rights and Freedoms) requires a religious organization to provide a service contrary to the religion related to the organization;
• requires a charity to transfer property to another person or entity that is not a charity, or order a person or entity that is not a charity to receive property from a charity; or
• requires an HSP or a ICDS that operates on a not-for-profit basis to amalgamate with or transfer its operations to another HSP or ICDS that operates on a for-profit basis.

Notably the above restrictions do not apply to the Minister’s right to form ICDS nor do they extend to the Agency’s rights of integration.

Integrations by HSPs or ICDS

Like the right granted to HSPs under the LHSIA, the Act gives HSPs and ICDS the ability to integrate their services. If the proposed integration relates to services that are funded in whole or in part by the Agency, the HSP or ICDS must follow the prescribed process for integration set out in the Act, which, among other things, requires the HSP or ICDS, as the case may be:

• to notify the Minister of the proposed integration; and
• to wait until 90 days have passed with no notice from the Minister or, if the Minister provides notice, wait a further 90 days for the Minister to issue a decision, which may prevent the integration.

Funding

Under the Act, the Minister may provide funding to the Agency, which may in turn may deliver funding to HSPs, ICDS or other person or entity that supports the provision of health care (which are collectively referred to by the Act, and will be referred to in this part of the bulletin as “Delivery Organizations”). The Act also permits the Minister to assign to the Agency (or any other entity), the Minister’s rights and obligations under any agreement between the Minister and a Delivery Organization. Similar provisions currently exist under the LHSIA, which allow the Minister to provide funding through, and assign agreements to, LHINs.

The Act requires the Agency to enter into a service accountability agreement with any Delivery Organization to which it provides funding. Of particular significance is the provisions of the Act which deems a Delivery Organization to have accepted the terms of a service accountability agreement where: (i) the Organization and the Agency are unable to agree on the terms of that agreement; and (ii) the prescribed process has been followed. A similar deeming provision is included in the LHSIA (though the process is different).

Notably, the Act authorizes the Lieutenant Governor in Council to make the following funding-related regulations:

• a regulation governing the funding that the Agency provides to HSPs, ICDS or any other person or entity that receives funding from the Agency;
• a regulation regarding the content or terms and conditions of service accountability agreements; and
• regulations requiring an HSP, ICDS or other person or entity that receives funding from the Agency to institute a system for reconciling the funding that it receives from the Agency on the basis set out in the regulation, including, requiring it to pay the Agency for any excess payment of funding and allowing the Agency to recover any excess payment of funding by deducting the excess from subsequent payments to the HSP, ICDS or other person or entity, as the case may be.

Accountability

The Act includes various provisions through which persons or entities that receive funding from the Agency are held accountable:

1. The Agency may at any time direct that any person or entity to which it provides funding be subject to audit or an operational or peer review.
2. The Agency may also require any person or entity to which it provides funding or proposes to provide funding to submit plans, reports, financial statements and other information required by the Minister (excluding personal health information).
3. Where the Agency considers it in the public interest to do, the Agency may appoint investigators to investigate and report on certain matters (e.g. quality of management) pertaining to HSPs or ICDS to which the Agency provides funding. Similar to the LHSIA, the Act excludes long-term care homes from this power. The Act clarifies that where a long-term care home forms part of an ICDS, the power of investigation only applies to the services and operations of the long-term care home not governed by the Long-Term Care Homes Act, 2007. Though the Agency’s power to appoint investigators does not extend to public hospitals or to an ICDS that includes a hospital, public hospitals (and the other persons or entities forming part of an ICDS that includes a public hospital) are instead subject to investigations by the Lieutenant Governor in Council.
4. Where the Minister deems it to be in the public interest to do so, he/she may appoint a person as a supervisor of an HSP or ICDS. The foregoing power is subject to the same: (i) exclusion that applies to long-term care homes; and (ii) modifications that apply to public hospitals, as are set out above in respect of investigators. Supervisors have the exclusive right to exercise all of the powers of an HSP or a ICDS and where the HSP or ICDS is owned or operated by a corporation, the powers of the board, officers, members and shareholders of such corporation together with any specified duties.
5. The Minister may issue directives to the Agency or any person or entity that receives funding from the Agency, and such directives may be general or particular in application. Under the LHSIA, the Minister may issue directives to LHINs, and LHINs may issue directives to HSPs.

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[1]  The terms “integrate” is defined below under the heading, “Types of Integrations”.

[2]  Additional information regarding integrations is included below under the heading, “Types of Integrations”.

[3]  Additional information in this respect is found below under the heading, “Funding”.

[4]   In addition to the Agency and HSPs.

[5]   More specifically, under the LHSIA the LHIN possesses the right to order integration via the integration methods identified in items 1-4 and 9, while the Minister has the authority to order integrations via the integration methods identified in items 5, 6 and 8, and each of the LHIN and the Minister also possess the power to do or omit from doing anything necessary to achieve the foregoing integrations.

https://www.fasken.com/en/knowledgehub/2019/03/health-bulletin-bill-74-integration-and-accountability-in-ontarios-health-system