Question Period Note: Canada Health Act Compliance Issues

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• Overview of federal action on key Canada Health Act compliance issues.
KEY MESSAGES
• Our Government is firmly committed to Canada’s publicly funded health care system and the principle that everyone deserves access to quality, accessible and universal health care.
• 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 strengthen and uphold the Canada Health Act to help ensure that patients do not face barriers when accessing medically necessary health care.
IF PRESSED ON THE MINISTER’S INTENT TO ISSUE A NEW CHA INTERPRETATION LETTER…
• On March 9th, Minister Duclos wrote to his provincial and territorial colleagues to express concerns about patient charges for medically necessary services resulting from the expansion of virtual care and expanding scopes of practice of some healthcare workers.
• As our health care system evolves, we must ensure it remains true to the spirit and intent of the Canada Health Act.
• The federal government is committed to working with the provinces and territories to improve our health care system in a manner that strengthens its public and universal nature.
• When Canadian access medically necessary services, whether in person or virtually, they should remain free of charge.
IF PRESSED ON PROVINCES AND TERRITORIES USING PRIVATE FACILITIES FOR THE DELIVERY OF INSURED SERVICES…
• The Government of Canada will work with provinces and territories to ensure that its significant ten-year, close to $200 billion, investment in health care funding to provinces and territories is used in ways that respect the principles of the Canada Health Act.
• The Canada Health Act does not preclude private facilities from providing medically necessary services, so long as patients are not charged to access these services.
• This Government will continue to uphold the Act so that Canadians have equitable access to medically necessary services based on their health needs and not their ability or willingness to pay.
IF PRESSED ON THE APPEAL OF THE CAMBIE DECISION TO THE SUPREME COURT OF CANADA…
• Our Government fully supports the Supreme Court of Canada's decision and commends British Columbia for the successful outcome.
• Canada joined these proceedings to support British Columbia's defense of our publicly funded health care system, which values equity and fairness over profit and preferential access to required care.
• We will always defend the values and principles that uphold the Canada Health Act and ensure that everyone, no matter where they live, gets the care they deserve based on their need and not their ability to pay.

Patient Charges for Medically Necessary Services Delivered Virtually and/or by Non-Physician Health Care Providers
On March 9, 2023, Minister Duclos wrote to his PT counterparts to express concerns about reports of patient charges for medically necessary services delivered virtually and/or by non-physician health care providers that would be insured if delivered in-person by a physician. The letter also stated his intent to issue a new Canada Health Act Interpretation letter to address the issue, which will require engagement with the PTs.

Patient Charges for Abortion Services in NB
Since March 2020, deductions totalling $334,766 have been levied against NB’s Canada Health Transfer (CHT) payments in respect of patient charges for surgical abortion services. 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. 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 for $700.

Access to Abortion in Ontario
Since March 2021, deductions totalling $53,265 have been levied against ON’s Canada Health Transfer (CHT) payments in respect of patient charges for surgical abortion services. In summer 2019, media stories in Ontario revealed fees charged to individuals to access surgical abortion services in some private clinics. 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 by Health Canada 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, 2022, and 2023 deductions. 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 they work to implement their action plan and eliminate patient charges for access to abortion services.

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 April 6, 2023, the Supreme Court of Canada decided not to hear an appeal of the BC Court of Appeal (BCCA) decision in Cambie Surgeries Corporation et al v. BC (Attorney General), bringing this case, which was initiated in 2009, to a close. With this decision, the BCCA decision in this case stands, upholding British Columbia’s (BC) ban on patient charges and the purchase of duplicative private insurance for services publicly insured under the BC Medical Services Plan, as well as BC’s de facto prohibition on physician dual practice (when physicians work within the publicly funded health care system and privately, at the same time).

While the Canada Health Act (CHA) was 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 Surgical Services in BC
Since March 2018, BC’s CHT payments have been deducted $81,963,933 in respect of patient charges at private surgical clinics. BC continues to work collaboratively with Health Canada to address patient charges for insured surgical services. To date, Health Canada has reimbursed $68,021,026 of these deductions in recognition of the province's efforts to eliminate these charges, including $6,974,014 in 2023. This amount represents partial reimbursements of deductions taken in 2021, 2022 and 2023.

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 one-for-one 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 were required to report on patient charges for medically necessary diagnostic services in December 2022. Patient charges for these services have resulted in $76,465,277 in mandatory dollar-for-dollar deductions from the Canada Health Transfer payments of the implicated provinces. Breakdowns by province are as follows:
• British Columbia - $17,165,309;
• Alberta - $13,781,152;
• Saskatchewan - $742,447;
• Manitoba - $353,827;
• Quebec - $41,867,224;
• New Brunswick - $1,277,659; and
• Nova Scotia - $1,277,659.

Patient charge estimates for BC and SK are based on information provided by those two provinces. Patient charge estimates for all other provinces are based on information from a survey conducted by Canadian Agency for Drugs and Technologies in Health (CADTH).
Provinces and territories have an opportunity to receive a reimbursement of any deductions taken if they eliminate these patient charges before March 2025. Health Canada has invited all implicated provinces to consult on the elements of a plan to eliminate patient charges, in order to be eligible for consideration under the Reimbursement Policy. A partial reimbursement of $8,582,655 (50%) was issued to British Columbia as a result of the steps already taken by the province to address these charges. Together with the $6,974,014 reimbursed in respect of patient charges for surgical services, British Columbia was reimbursed a total of $15,556,669 in 2023.

• On March 9, 2023, Minister Duclos wrote to his PT colleagues expressing concerns about how the expansion of virtual care services and expanding scopes of practice of health workers have resulted in patient charges for medically necessary services. The letter also noted his intent to issue a new CHA interpretation letter to address the issue to ensure that when Canadians access medically necessary services, whether in person or virtually, they remain free of charge.
• On March 10, 2023, the Government of Canada announced mandatory deductions to the Canada Health Transfer payments of BC, AB, SK, MB, ON, QC, NB, NS, totaling over $82 million, in respect of patient charges levied during 2020-2021.
• This included the first deductions taken under the Diagnostic Services Policy (DSP), totaling over $76 million, for patient charges levied for medically necessary diagnostic imaging services.
• BC also received a reimbursement of over $15 million under the CHA Reimbursement Policy given steps they have taken to eliminate patient charges.
• Mandatory deductions, including those taken under the DSP, are eligible for reimbursement provided the province implicated takes steps to eliminate patient charges and the circumstances that led to them, within two years after the deduction was taken.
• Health Canada continues to work with the implicated provinces to provide assistance and guidance on next steps in the reimbursement process.