Question Period Note: Canada Health Act - Compliance issues

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• Overview of federal action on key Canada Health Act compliance issues.
• Our Government takes its responsibility to defend the Canada Health Act seriously.
• The Canada Health Act ensures all Canadians have access to medically necessary health care services based on their health need, not their ability or willingness to pay.
• This Government will uphold the Canada Health Act to help ensure that patients do not face barriers when accessing medically necessary health care.

IF PRESSED ON PROVINCES AND TERRITORIES USING PRIVATE FACILITIES FOR THE DELIVERY OF INSURED SERVICES…
• Our government is committed to preserving and improving our publicly funded health care system, which values equity and fairness over profit and preferred access in the provision of medically necessary health care.
• The Canada Health Act does not prohibit the use of private facilities in the delivery of insured health services as long as patients are not charged.
• Provinces and territories that allow patient charges for insured health services at private facilities are subject to mandatory dollar-for-dollar deductions from their federal Canada Health Transfer payments.

IF PRESSED ON THE APPEAL OF THE CAMBIE DECISION TO THE SUPREME COURT OF CANADA…
• Our government fully supports the British Columbia Court of Appeal’s decision, which validates the fundamental principle of Canada’s health care system – access to medically necessary health services should be based on medical need, and not on the ability or willingness to pay.
• We will continue to work with British Columbia to vigorously defend Canada’s publicly funded health care system, which values equity and fairness over profit and preferential access to required care.

Patient Charges for Abortion Services in NB

In New Brunswick (NB), Regulation 84-20 of the Medical Services Payment Act limits coverage of surgical abortion services to approved hospitals (three NB hospitals currently offer the service – two in Moncton and one in Bathurst). This means that individuals who receive these services at the private clinic in Fredericton are required to pay out-of-pocket. NB is the only province with a private abortion clinic (Clinic 554) where the province does not provide coverage for services. Patient charges for abortion services received in private clinics are considered user charges under the Canada Health Act (CHA), and raise concerns under the accessibility and comprehensiveness criteria of the Act. Since March 2020, deductions totalling $269,916 were levied against the province’s Canada Health Transfer (CHT) payments in respect of patient charges for surgical abortion services. The lack of coverage for abortions performed in private clinics has been discussed bilaterally with NB since 1995, without resolution. Currently, Clinic 554 appears to be operating one day per week, offering only surgical abortion services.

Access to Abortion in Ontario

In summer 2019, media stories in Ontario revealed fees charged to individuals to access surgical abortion services in some private clinics. Health Canada followed up on these reports by analyzing clinic websites, and by making phone or email inquiries to clinics of concern. While the Ontario Health Insurance Plan provides coverage for physicians' fees related to abortion services in all private clinics, the province only covers facility fees in the four private abortion clinics licensed as Independent Health Facilities (IHF). Evidence gathered confirmed that some private non-IHF abortion clinics charged fees for uninsured services, while not consistently informing patients these fees were optional, with respect to accessing insured surgical abortion services.

When the Ontario Health Ministry conducted further investigations, the patient charges they discovered were reported to Health Canada. These charges formed the basis of Ontario’s March 2021 and March 2022 deductions (totaling $20,465). In December 2021, Ontario submitted a Reimbursement Action Plan to Health Canada, and has committed to revisit the current framework for the funding of insured surgical abortion services in the province. Health Canada continues to engage with Ontario as it works to implement its action plan and eliminate patient charges for access to abortion services and the province will provide an updated status report in the coming months, which will be published in the Canada Health Act Annual Report for 2021-2022.

Under the Canada Health Act (CHA) Reimbursement Policy, which came into effect in 2018, provinces and territories that face mandatory deductions have the opportunity to be reimbursed if they work with Health Canada to develop a plan to eliminate patient charges for medically necessary services, and the circumstances that led to them. The plan must be successfully implemented within a specified timeframe (under the Reimbursement Policy, and as outlined in Section 25.01 of the Federal-Provincial Fiscal Arrangements Act, a province has up to two years from the date of a deduction to be reimbursed).

Appeal of Cambie Surgeries Corporation et al. v. BC (Attorney General) to the Supreme Court of Canada

On September 29, 2022, Cambie Surgeries Corporation et al. (Cambie) initiated the process to request that the Supreme Court of Canada hear an appeal of the British Columbia (BC) Court of Appeal decision in Cambie v. BC (Attorney General). On July 15, 2022, the BC Court of Appeal released its decision in this case, upholding the ruling of the Supreme Court of BC which dismissed the constitutional challenge to provisions of BC’s Medicare Protection Act.

These specific provisions prohibit patient charges for insured services and the purchase of private insurance to cover these services, as well as dual practice, which occurs when physicians work within the publicly funded health care system and privately, at the same time. While the Canada Health Act (CHA) is not under direct challenge in this case, the federal government joined the proceedings as a party to support BC in its defence of its legislation, which mirrors the fundamental principles of the CHA, namely that access to required care should be based on need, and not on the ability or willingness to pay.

Patient Charges for Cataract Services in Newfoundland and Labrador (NL)
Working collaboratively with Health Canada, NL developed and carried out a plan to eliminate patient charges for insured cataract surgery provided by an enrolled physician at a private clinic. While NL has faced ongoing deductions to its CHT payments in respect of these patient charges, including a deduction, all deducted amounts have been reimbursed as the province has successfully eliminated the charges.

Patient Charges for Surgical Services in BC
BC continues to work collaboratively with Health Canada to address patient charges for insured surgical services. Since March 2018, BC’s CHT payments have been deducted $76,018,712 in respect of patient charges at private surgical clinics. To date, Health Canada has reimbursed $61,047,012 of these deductions in recognition of the province's efforts to eliminate these charges.

Diagnostic Services Policy:
The Diagnostic Services Policy is aimed at eliminating patient charges for medically necessary diagnostic services, such as MRI and CT scans. The policy confirms the long-standing federal position that all medically necessary services, including diagnostic services, are insured services, regardless of the venue where the services are delivered. Seven provinces currently allow patients to pay privately for diagnostic services and Saskatchewan actively encourages the practice, through its 1-for-1 model.

Following consultations between Health Canada and provincial and territorial governments, the Diagnostic Services Policy was communicated to jurisdictions in August 2018 via a Canada Health Act interpretation letter, and came into effect on April 1, 2020. These timelines were intended to give jurisdictions time to align their health care systems with the policy’s requirements. Under the Policy, provinces and territories will be expected to report on patient charges for medically necessary diagnostic services in December 2022. Patient charges for these services will result in mandatory dollar-for-dollar deductions from the Canada Health Transfer payments of the implicated province or territory beginning in March 2023. Provinces and territories have an opportunity to receive an immediate reimbursement of any deduction if they eliminate these patient charges before March 2023. Health Canada continues to engage with provinces and territories affected by the Policy.

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