Justice
Fairness
Respect
Impartiality
Transparency
Brief by the Québec Ombudsman
presented to the Committee on Health and Social Services
within the framework of the special consultations on Bill 92,
Act to expand the powers of the Régie de l’assurance maladie du Québec and to
amend various legislative provisions
Québec City, May 10, 2016
Mission of the Québec Ombudsman
The Québec Ombudsman ensures that the rights of citizens are upheld by
intervening with regard to Québec government departments and agencies and
the various bodies within the health and social services network to remedy situations
that are prejudicial to a person or group of persons. Appointed by the elected
members from all political parties and reporting to the National Assembly, the
Québec Ombudsman acts independently and impartially, whether an intervention
is undertaken in response to a complaint or series of complaints or on the institution’s
own initiative.
Respect of citizens and their rights and prevention of prejudicial situations are at the
heart of the Québec Ombudsman’s mission. Its preventive role consists primarily of
the systemic investigation of situations detrimental to a large number of citizens.
Pursuant to the powers conferred upon it, it can propose amendments to acts and
regulations and changes to directives and administrative policies with a view to
improving them in the best interest of the people concerned.
This document is available online at our website
(http://www.protecteurducitoyen.qc.ca), in the Investigations & Recommendations
section, under Reactions to bills and draft regulations.
When the masculine form is used, it is intended to be gender-inclusive.
© Protecteur du citoyen, 2016
Reproduction, in whole or in part, is permitted with acknowledgement of the
source.
Table of contents
Introduction .......................................................................................................................................... 2
1
The importance of the Régie de l’assurance maladie du Québec’s role ....................... 2
2
Genuine exercise of the Régie’s powers: the Québec Ombudsman’s findings in the
last five years ................................................................................................................................. 2
3
A much-needed second look at the question of accessory costs .................................... 3
4
The Régie’s additional powers .................................................................................................. 5
5
The Québec Ombudsman’s recommendations concerning the Bill ................................ 6
6
5.1
Double standard: reimbursing insured persons and recovering amounts
collected illegally ............................................................................................................6
5.2
Communication of information to certain bodies and professional orders ............8
5.3
Whistleblower protection ...............................................................................................8
5.4
Operating costs of doctors’ offices and medical clinics ...........................................9
5.5
Accessory costs for services of an administrative nature related
to a non-insured service ...............................................................................................10
The Régie’s governance and accountability ...................................................................... 11
Conclusion .......................................................................................................................................... 12
Appendix: List of recommendations ............................................................................................. 14
Introduction
1
The Québec Ombudsman would like to thank the Committee on Health and Social
Services (Committee) for inviting it to participate in the special consultations on Bill 92 –
Act to expand the powers of the Régie de l’assurance maladie du Québec and to
amend various legislative provisions.
1 The importance of the Régie de l’assurance
maladie du Québec’s role
2
The mission of the Régie de l’assurance maladie du Québec (Régie) is to administer
Québec’s public health insurance and drug insurance plans as well as the forty-or-so other
programs entrusted to it.
3
The Québec Ombudsman wishes to draw attention to the scope of the mandates and the
quality of the work required of the Régie. For example, the Régie handles the
remuneration of 41,300 health professionals, service dispensers and other prescribers who,
every year, file some 281.1 million claims for payment, for a total of nearly $11 billion,
which represents 15% of the entire expenditure budget per Government of Québec
mission. The Régie is thus an important public insurance corporation with the functions of a
payment and recovery agency.
4
Over the years, the Régie has been given increasing responsibilities. Bill 92 proposes to
strengthen its ability to act by granting it additional powers once more. This will include
power regarding control of the remuneration of the various health professionals and of
other service dispensers under its jurisdiction, the power to apply to the Superior Court to
obtain an injunction to terminate illegal practices, as well as broader powers of inspection,
with the attendant fines and administrative penalties. In the Québec Ombudsman’s
opinion, strengthening of the Régie’s ability to act is appropriate and should, if it
contributes to more efficient and effective control, lead to greater protection of citizens’
rights.
2 Genuine exercise of the Régie’s powers: the
Québec Ombudsman’s findings in the last five
years
5
The Québec Ombudsman’s first angle of analysis remains the real effect of the proposed
measures on service quality and respect of citizens’ rights. In each of the last five years,
the Québec Ombudsman has handled an average of 225 service requests concerning
the Régie and 291 in 2015-2016. Many of the complaints received have to do with
problems of eligibility for the public plan, renewal of health insurance cards or access to
the general prescription drug insurance plan or to certain medications deemed
exceptions.
6
As for managing the eligibility of insured persons, the Québec Ombudsman has seen that
the various Régie teams work assiduously to ensure that citizens are issued health
insurance cards in compliance with the law. The Régie monitors eligibility strictly and
rigorously. But can the same be said of the remuneration of health professionals and billing
for specific services?
2
7
Despite substantial powers, the Régie has not managed to obtain optimal anticipated
outcomes in terms of the oversight of billing. The Québec Ombudsman would like to point
out to the Commission and the Minister of Health and Social Services that it has had to
intervene time and again in this regard, but to no avail. Despite the Québec
Ombudsman’s recommendations, the Régie has seemed powerless to enforce the
applicable laws. Lucentis, a common medication that costs roughly $15, used to treat
age-related macular degeneration, is an eloquent example. Insured persons, billed
between $200 and $300, have had to pay up to 20 times the cost of this medication.
Despite repeated and insistent interventions by the Québec Ombudsman on this subject,
the Régie merely responded with verbal commitments that did not go anywhere until a
class action suit was launched.
8
Regarding accessory costs and billing in doctors’ offices or private clinics, the conclusions
of the investigations by the Québec Ombudsman into illegal billing for medication and
medical services show that, among other things, management of user billing is a chronic
problem. Over the years and more particularly since 2011, the Québec Ombudsman has
intervened several times further to numerous complaints it deemed substantiated. The
common denominator was:
►
exorbitant service-outlet billing for medication (e.g. eye drops, anaesthetic
agents or injections administered in a medical clinic);
►
flat rates for non-insured medical services or other fees (e.g. VIP rates, annual
memberships fees for cooperatives or fees for appointment cancellations);
►
fees by private sub-contractors that offer non-insured services (e.g. transport and
analysis of samples taken in a doctor’s office or private clinic by private
laboratories, services that are not delivered by the physician, such as taking
blood pressure, or blood tests by a nurse).
3 A much-needed second look at the question of
accessory costs
9
Analysis of Bill 92 and of the Régie’s powers over the control of billing inevitably leads to
the question of accessory costs for insured services and the resulting contradiction
regarding care and service universality.
10
A reminder that in October 2015, the Québec Ombudsman sent the Commission a formal
opinion1 and a letter2 within the framework of the detailed consideration of Bill 20, an Act
to amend the Act to promote access to family medicine and specialized medical
services and to amend various legislation provisions relating to assisted procreation. In
both cases, it reiterated that it endorsed the spirit and goals of Canadian and Québec
health and social service legislation that promotes access to quality health services for all
whether users can afford to pay or not.
11
In keeping with this fundamental principle, the Québec Ombudsman recommended
prohibiting accessory costs billed to insured persons for the provision of insured services
for which physicians are remunerated by the public system. The amendments introduced
in Fall 2015 provided for this prohibition, while empowering the government to “by
1
QUÉBEC OMBUDSMAN, Formal opinion to the Minister of Health and Social Services and the Committee on
Health and Social Services. October 1, 2015. [in French]
2 QUÉBEC OMBUDSMAN, Letter on funding of accessory costs related to insured services. October 5, 2015. [in
French]
3
regulation, prescribe the cases and conditions in and on which a payment is
authorized.”3 Publication of the regulation has yet to happen.
12
On May 4, 2016, the Minister of Health and Social Services announced that the
government intended to prohibit all accessory costs for insured services for which
physicians who participate in the public plan are already remunerated and,
consequently, to not enact any regulation governing accessory costs. The Québec
Ombudsman noted this announcement, but must nonetheless examine the existing
legislative framework and Bill 92 as written. Given that there will be no legislative
amendment under which the twelfth paragraph of section 22 of the Health Insurance
Act would be repealed, thereby eliminating this regulatory power of the government, the
public remains unprotected because a regulatory provision prescribing the cases and
conditions for authorizing payment could conceivably be enacted. This means that
citizens would have no guarantees as to what physicians and other health professionals
can or cannot bill them for.
13
Under an amendment to section 73 of the Code of ethics of physicians, physicians must
refrain “from seeking or obtaining undue profit from the prescription of apparatus,
examinations, medications or treatments either directly, indirectly or through an
enterprise controlled by the physician or in which the physician takes part.”4 However, this
amendment has not come into force and has been postponed pursuant to a
government order in council of June 30, 2015. The clarification of the Code as to the
ethical obligations regarding accessory costs is therefore not yet in force.
14
Be that as it may, the Québec Ombudsman remains convinced that in Québec, the vast
majority of physicians exercise their profession in keeping with ethical principles and their
code of professional conduct and even go beyond the call of duty. Even so, a minority
violates these rules, and it is precisely because of them that the Québec Ombudsman
draws the Committee’s attention to the importance of acting. Pending clarification of
the legislation, accessory costs are prohibited under the ninth paragraph of section 22 of
the Health Insurance Act, but despite this, agreements with physician federations
continue to apply,5 and insured persons continue to be charged accessory costs by
professionals who take advantage of lingering grey zones.
3
Health Insurance Act (CQLR, c. A-29), ninth and eleventh paragraphs of section 22 as amended by section
32 of the Act to promote access to family medicine and specialized medical services (CQLR, c. A-2.2),
enacted by section 1 of the Act to enact the Act to promote access to family medicine and specialized
medicine services and to amend various legislative provisions relating to assisted procreation (2015, c. 25):
“No payment may be charged to or received from any insured person, directly or indirectly, for costs incurred
for insured services provided by a health professional who is subject to the application of an agreement or by a
professional who has withdrawn (…)” (…) “Despite the prohibitions set out in the ninth and eleventh
paragraphs, the Government may, by regulation, prescribe the cases and conditions in and on which a
payment is authorized.”
4 Order in council 1113-2014, Regulation to amend the Code of ethics of physicians (2014) 146 G.O. Part 2,
4586. The coming into force of section 14, intended for July 7, 2015, was postponed indefinitely by Order in
council 587-2015, (2015) 147 G.O. Part 2, 1887B. Section 14 amends section 73 of the Code of ethics of
physicians (CQLR, c.M-9, r.17).
5 Section 76, Act to promote access to family medicine and specialized medicine services (CQLR, c. A-2.2).
4
Recommendation:
Concerning the need for action regarding protection of citizens´ rights in terms of
accessory costs for insured services
Whereas:
The coming into force of section 14 of the Regulation to amend the Code of ethics of
physicians concerning accessory costs has been postponed;
The government’s intention to prohibit accessory costs will be formalized only when
the regulatory power provided for in the twelfth paragraph of section 22 of the Health
Insurance Act, which makes it possible to authorize certain accessory costs, is
repealed;
Until then, the existence of this regulatory power leaves the public unprotected from
accessory costs;
In the meantime, the agreements with physician federations continue to apply and
accessory costs continue to be charged;
The Québec Ombudsman recommends:
R-1 That the twelfth paragraph of section 22 of the Health Insurance Act, which provides
that “despite the prohibitions set out in the ninth and eleventh paragraphs, the
Government may, by regulation, prescribe the cases and conditions in and on which a
payment is authorized,” as well as section 47 of the Bill, be repealed.
4 The Régie’s additional powers
15
Bill 92 proposes amendment of the Health Insurance Act, the Act respecting the Régie de
l’assurance maladie du Québec and the Act respecting prescription drug insurance.6
The purpose of these amendments includes:
►
Strengthening the powers of Régie inspectors and investigators (sections 39, 40
and 41);
►
Increasing fine amounts for wrongdoing or fraudulent acts (sections 3, 4, 5, 9, 10,
11, 19, 26 and 27);
►
Empowering the Régie to intervene more effectively to recover amounts unduly
claimed by the dispensers of ortheses, prostheses or other insured devices
(section 20);
►
Empowering the Régie to have more severe penalties for wrongdoers in the case
of non-authorized rebates, gratuities or any other non-authorized benefits
extended by a prescription drug manufacturer or wholesaler or received by a
pharmacist (sections 31, 32 and 33);
►
Introducing monetary administrative penalties for service providers found in
violation (sections 12, 13, 20, 22, 31 and 32);
►
Empowering the Régie to apply to obtain an injunction to have illegal practices
terminated (section 42);
6
Health Insurance Act (CQLR, c. A-29); Act respecting the Régie de l’assurance maladie du Québec (CQLR, c.
R-5); Act respecting prescription drug insurance (CQLR, c. A-29.01).
5
►
Giving the Régie a power of initiative that would expand its current obligation to
act only after insured persons have applied for a reimbursement of any amount
they consider owed to them (section 12).
16
In the Québec Ombudsman’s opinion, the Régie’s additional powers, the imposition of
monetary administrative penalties and an increase in fine amounts are fully warranted.
Taken as a whole, these measures mark major strides in the protection of citizens’ rights
and respect for the public plan’s foundation and rules.
17
More specifically with regard to the new power of initiative, it bears noting that the
Québec Ombudsman regularly receives requests for information from citizens who,
feeling that they were unjustly charged fees in the context of a medical consultation,
want to claim reimbursement from the Régie. However, these people often hold back or
fail to exercise recourse for fear that their physician will deny them access in retaliation.
Pursuant to these new powers, the Régie could act unilaterally to recover any amount
received by a health professional who violates the Act, whereas, as it stands now, it can
act only when it receives an application for reimbursement from an insured person. The
Québec Ombudsman endorses this amendment, but nonetheless thinks it crucial that
people in such situations have effective guarantees against bullying and reprisal.
18
Another new power consists in an amendment to the Health Insurance Act under section
6 of Bill 92 enabling the Régie to claim the cost of received insured services from anyone
who has helped a person unlawfully obtain or use a health insurance card. As mentioned
previously, the Régie is specifically mandated to control the eligibility of persons for the
programs it administers (subparagraph (b) of the second paragraph of section 2 of the
Act respecting the Régie de l’assurance maladie du Québec). An important task—that
of curbing abusive use of health insurance cards—stems from this. For example, the Régie
has conducted international investigations uncovering scams to create hundreds of
fictitious applicants who would milk the public system. It follows that the Régie must be
better equipped to eradicate fraud of this kind starting at inspection.
19
Lastly, Bill 92 is a partial response to one of the Québec Ombudsman’s recommendations
in its formal opinion in October 2015,7 namely, to grant the Régie the powers it needs to
properly fulfill its obligations regarding oversight of physician remuneration.
5 The Québec Ombudsman’s recommendations
concerning the Bill
5.1
Double standard: reimbursing insured persons and recovering amounts
collected illegally
20
While Bill 92 strengthens some of the Régie’s powers and grants the agency new ones,
the Québec Ombudsman notes that the applicable laws create a double standard.
When the Régie claims amounts from a citizen, under the Health Insurance Act the
person must reimburse the Régie8 (must and not may). However, when the Régie should
reimburse an insured person for amounts illegally charged by a physician, the law
provides that the Régie may do so.
21
The Régie has discretionary power to (it may but not must):
►
recover amounts illegally obtained by health professionals, service dispensers or
third persons;
7
Formal opinion. See footnote 1 and R-2, p. 7.
8
Section 9.7 of the Health Insurance Act (CQLR, c. A-29).
6
►
reimburse a person for the amounts that the person paid to a representative of
the above categories when he or she did not have to.9
22
In the Québec Ombudsman’s opinion, when the facts show that a person is in this
situation, he should be reimbursed, just like he must reimburse the Régie when the
agency has claimed an amount from him. More generally, “may” should be replaced by
“must” in several provisions of the Health Insurance Act and the Act respecting
prescription drug insurance, or discretionary power should be more firmly structured.
23
Pursuant to the Bill, from now on the Régie can act on its own initiative to recover
amounts illegally charged, for example, by a medical clinic, without the insured person
having to apply for reimbursement.10 Under Bill 92, the Régie can inform insured persons,
by any means it considers appropriate, of their right to be reimbursed for any amount
that they paid when they did not have to.11 As a rule, the Régie has at its disposal all
useful information for proceeding with reimbursement.
24
In the Québec Ombudsman’s opinion, the means of information provided for in Bill 92
(notice on the Régie website or in the locality where the professional practices) are
insufficient for ensuring adequate information. The Bill also stipulates that if the Régie can
confirm that an insured person is entitled to be reimbursed the amounts they have paid
out, the person must apply to be reimbursed in writing. The Québec Ombudsman
considers this step pointless and costly and believes that the Régie should be able to
proceed with reimbursement without insured persons having to apply.
Recommendation:
Concerning the need to reimburse citizens harmed by illegal billing practices
Whereas:
The Régie must use all necessary means to recover from health professionals the
amounts obtained in violation of the Act;
The Régie should systematically reimburse the insured persons harmed by illegal
practices of this kind and that, as a rule, it has at its disposal all useful information for
doing so;
Subparagraph (1) of the second paragraph of section 22.0.1, as worded in Bill 92,
provides for reimbursement only if the insured person applies for it;
The Québec Ombudsman feels that the means of information provided for in
subparagraph (2) of the second paragraph of section 22.0.1, as worded in Bill 92, are
insufficient for ensuring adequate information;
The Québec Ombudsman recommends:
R-2
9
That section 22.0.1 of the Health Insurance Act, as proposed in section 12 of Bill 92,
be amended to introduce the obligation for the Régie to reimburse insured persons
without their having to apply.
Section 12 of Bill 92 amending section 22.0.1 of the Health Insurance Act.
10
Section 22.0.1 of the Health Insurance Act, amended by section 12 of Bill 92.
11
Subparagraph (2) of the second paragraph of section 22.0.1 of the Health Insurance Act, amended by
section 12 of Bill 92.
7
5.2
Communication of information to certain bodies and professional orders
25
The Québec Ombudsman subscribes to the provisions of the Bill aimed at structured
broadening of the exchange of information between the Régie and the bodies
responsible for preventing, detecting or repressing crime or offences. 12 These exchanges
would be allowed provided the information conveyed is required in order to prosecute
an offence under an Act applicable in Québec, or in order to prevent, detect or repress
such an offence.
26
Even though the Bill broadens the range of professional orders to which the Régie can
convey information, the current nature or circumstances of the Régie’s collaboration with
the various professional orders has not changed.13
27
The Québec Ombudsman feels that intensifying this collaboration would increase the
impact of the Bill, thereby enhancing the dissuasive effect on health professionals
because the Régie’s communication of this information to their professional orders could
give rise to investigations possibly leading to a disciplinary process. Professionals who
break the law may also be in breach of their ethical obligations. Consequently, the
Québec Ombudsman considers that the Régie should, as the law allows, inform the
professional orders concerned every time it deems that a professional has contravened
the Health Insurance Act.
Recommendation:
Concerning the need to prevent or repress all illegal acts by a member of a
professional order
Whereas:
The Régie must continue its collaboration with professional orders more systematically;
Only professional orders can act with respect to their members’ ethical obligations;
The communication of the relevant information to professional orders facilitates
investigations that enable undertaking of a disciplinary process;
The Québec Ombudsman recommends:
R-3
That the Régie make a point of communicating the information obtained within the
framework of applying the Health Insurance Act to the professional orders
concerned, each time it deems that a professional has contravened this Act.
5.3
28
Whistleblower protection
In the Québec Ombudsman’s opinion, people who speak out to the Régie about
wrongdoings related to the laws and regulations it administers should be protected from
possible reprisal. For example, insured persons are loath to claim reimbursements to which
they would be entitled for fear that, among other things, their physician will blacklist
them. In these circumstances, whistleblowers can also be other professionals or third
persons acting in the public interest.
12
Section 24 (2) of Bill 92.
13
See section 24 of Bill 92.
8
29
On this score, note that Bill 87, Act to facilitate the disclosure of wrongdoings with public
bodies, presently under consideration by the National Assembly, contains whistleblower
protection provisions. In the same way as whistleblowers who report wrongdoings
committed within a public body deserve legislative protection against reprisal, people
who report an illegal situation to the Régie should also enjoy such legislative protection,
which should be enshrined in Bill 92.
Recommendation:
Concerning the need to ensure that insured persons and other whistleblowers are
protected against reprisal
Whereas:
Anyone who reports an illegal behaviour to the Régie should have legislative
protection against reprisal;
Insured persons who apply to the Régie for reimbursement should not fear reprisal;
The Québec Ombudsman recommends:
R-4
That Bill 92 be amended to include legislative protection against reprisal, that could
read as follows: “No person shall seek or attempt to seek reprisal of any nature
against a person who has applied or intends to apply for reimbursement, or who has
reported, or intends to report, illegal behaviour to the Régie de l’assurance maladie
du Québec.”
5.4
30
31
Operating costs of doctors’ offices and medical clinics
In the Québec Ombudsman’s view, assessment of the administrative fees for the
operation of doctors’ offices and medical clinics requires that the obligations incumbent
on the Régie be expanded. In its October 2015 formal opinion on accessory costs,14 the
Québec Ombudsman recommended introduction of a permanent program for
evaluating these costs. While agreeing that charging insured persons these fees should
be prohibited, the Québec Ombudsman is aware that operating cost increases, mainly
due to technological and pharmacological advances in the medical field, are
unavoidable facts. However, the best way of dealing with this is not through negotiations
between medical federations and the Ministère de la Santé et des Services sociaux.15 This
is why in its formal opinion it recommended that the Régie:
►
produce a portrait of the operating costs of doctors’ offices and medical clinics;
►
evaluate their real costs and financing scenarios;
►
incite the Ministère de la Santé et des Services sociaux to propose a
compensation system to medical federations based on the real operating costs
of doctors’ offices and medical clinics.
This recommendation still holds, in fact, even more so, because it is still uncertain whether
charging of accessory costs will not be permitted by regulation. If it is possible to establish
14
Formal opinion. See footnote 1.
15
According to the Régie, doctors’ office costs for general practitioners and specialists alike are estimated at
35% of overall revenues and, because of the cost of equipment, 70% in the case of radiology. The costs
represent an average of $47,977 for general practitioners and of $409,795 for specialists. Source: Étude des
crédits 2015-2016, Régie de l’assurance maladie du Québec, Answers to general and specific questions,
document no. CSSS-036 tabled on May 5, 2015, Questions 360 and 361, pp. 140 to 142.
9
the cost per user of a day surgery or of any endoscopic procedure, it should be equally
possible to do so for the operating costs of doctors’ offices and medical clinics.
Recommendation:
Concerning clarification of the operating costs of doctors’ offices and medical clinics
Whereas:
An evaluation of the operating costs of doctors’ offices and medical clinics is
necessary to establish a permanent compensation system based on real costs;
An evaluation process is slow in coming and as a result, physician compensation for
these costs cannot be based on real costs;
The Régie should be mandated to carry out such an evaluation;
The third paragraph of section 2 of the Act respecting the Régie de l’assurance
maladie du Québec provides that the Régie must carry out any mandate entrusted to
it by the Minister of Health and Social Services;
The Québec Ombudsman recommends:
32
33
R-5
That the Minister of Health and Social Services mandate the Régie to design,
administer and apply a permanent program to evaluate the administrative costs of
doctors’ offices and medical clinics in order to determine their real operating costs
and financing scenarios.
5.5
Accessory costs for services of an administrative nature related to a non-insured
service
In its formal opinion in October 2015,16 the Québec Ombudsman expressed concern
about the fees charged to insured persons by health professionals for non-insured
administrative services, for example, filling out the form for evaluating an elderly person’s
ability to drive. Depending on the professional, these fees may range from $50 to $300,
with no good reason for these variations. For the Québec Ombudsman, it is clear that
these costs must be:
►
delimited;
►
posted so that citizens can see them;
►
reasonably priced and established by a law or regulation.
Further to the passage in November 2015 of the Act to enact the Act to promote access
to family medicine and specialized medical services and to amend various legislation
provisions relating to assisted procreation,17 the Québec Ombudsman noted with
satisfaction the new section 22.0.0.0.2 of the Health Insurance Act, which provides that
the Government may, by regulation, prescribe the maximum tariff that may be
demanded from an insured person for a service provided by a non-participating
physician. However, at the time this brief was being drafted, such a regulation had yet to
be enacted. Given the importance of the issues, the Québec Ombudsman feels that this
16
Formal opinion. See footnote 1.
17
Act to enact the Act to promote access to family medicine and specialized medical services and to amend
various legislation provisions relating to assisted procreation, 2015, c. 25.
10
should be done promptly and that the content of the regulation should reflect the need
to assure citizens optimal access to these services.
Recommendation:
Concerning oversight of costs that can be charged for administrative services related
to a non-insured service
Whereas:
Control of the rates charged for administrative services related to a non-insured
services are crucial to public protection;
The Québec Ombudsman recommends:
R-6
That the regulation provided for in section 22.0.0.0.2 of the Health Insurance Act,
which will prescribe the maximum tariff that may be demanded from an insured
person for an administrative service provided by a non-participating physician, be
enacted with the timeliness required by an issue of such importance.
6 The Régie’s governance and accountability
34
As a public agency, the Régie is subject to the principles of sound governance and
reports on the achievement of its mandate to the public, elected officials and the
government. As a result, it must abide by specific accountability provisions laid out mainly
in the:
►
Public Administration Act;
►
Act respecting the governance of state-owned enterprises;
►
Act respecting the governance and management of the information resources
of public bodies and government enterprises.18
35
There is also the agency’s governance policy,19 adopted by the board of directors, and
the agency’s annual management report.20 It is astounding that, when all is said and
done, the Régie’s accountability mechanisms do not provide more detailed guidelines
for the achievement of its various remuneration control objectives. As the Québec
Ombudsman sees it, rigorous accountability is called for, especially given the new
provisions of Bill 92 and the additional powers granted to the Régie.
36
It is up to the Régie’s board of directors, through the audit committee, to adopt
management tools and performance review mechanisms that take into account the
agency’s activities in connection with control of professionals’ remuneration and
information to the public, among other things. In its strategic planning, the board of
directors proposes a corporate philosophy, guiding principles, policy directions and the
programs required to implement them. These include, for example, inspection and
training programs designed to optimize the actions of the Régie’s intervention team.
18
Public Administration Act, CQLR, c. A-6.01; Act respecting the governance of state-owned enterprises, CQLR,
c. G-1.02; Act respecting the governance and management of the information resources of public bodies and
government enterprises, CQLR, c. G-1.03.
19 Régie de l’assurance maladie du Québec, Politique de gouvernance de la Régie de l’assurance maladie du
Québec, approved by the board of directors on December 8, 2015, 16 p.
20 Régie de l’assurance maladie du Québec, Rapport annuel de gestion 2014-2015, 134 p.
11
37
The first policy direction in the Régie’s current strategic plan21 specifies that the agency
strives to “strike a balance between service provision trends and the appropriate
controls.” [translation] However, there are no objectives or quantitative indicators
regarding control measures. In its annual management report for 2014-2015, there is only
one table specifying the number of decisions rendered, with at least one corrective
measure stemming from an investigation by the Régie.22 With the Régie’s new powers
under Bill 92, such a snapshot will be patently insufficient.
38
In the Québec Ombudsman’s opinion, it is imperative to immediately provide for
accountability mechanisms that will make it possible to properly assess the impact of the
new bill, including repercussions in terms of the results of professional inspections and the
budget of the public insurance plans administered by the Régie. The fact that the Régie’s
current management report lacks sufficient data is indicative of the failings regarding
accountability. Made public, this information would, among other advantages, have the
desired dissuasive effect.
Recommendations:
Concerning the
accountability
appropriateness,
clarity
and
transparency
of
the
Régie’s
Whereas:
The provisions of Bill 92 extend the Régie’s powers in the control of the remuneration of
professionals;
As a public agency, the Régie is subject to the principles of sound governance;
The Régie’s accountability instruments should enable assessment of the impact of
Bill 92 on the Régie’s performance;
The Québec Ombudsman recommends:
R-7 That the Régie periodically report to its board of directors on its actions to oversee
remuneration.
R-8 That the Régie enter these data, the results of professional inspections and
investigations in particular, as well as budgetary impacts, in a specific section of its
annual management report.
Conclusion
39
At the beginning of this brief, the Québec Ombudsman expressed its appreciation for the
Régie and is repeating it now. The Régie is an agency that, as a whole, get results and
whose program management more often than not attests to its desire to ensure that
citizens receive quality services.
40
With Bill 92, the Régie will be called to take on new powers. The Québec Ombudsman
feels that these new powers are necessary to the Régie better fulfilling its mission. It
nonetheless has made certain recommendations to facilitate the Bill’s implementation,
21
Régie de l’assurance maladie du Québec, Plan stratégique 2013-2017 : Un partenaire incontournable du
système de santé québécois dont l’approche proactive et novatrice contribue à l’amélioration des services
publics, 28 p.
22 Régie de l’assurance maladie du Québec, Rapport annuel de gestion 2014-2015, p. 30.
12
with a view to better protecting citizens and strengthening oversight of the substantial
public funds allocated for managing the plans and program entrusted to the Régie.
41
The Régie will face daunting challenges in terms of proactivity and effective use of its
new powers once it has been vested with them. In turn, its board of directors will also be
called to play a key role in setting out Régie policy directions and monitoring the
management of the Régie. The board consists of members eminently qualified to identify
abuse, fraud and illegality and to find ways of curbing them. That said, even though
section 22 of the Health Insurance Act already prohibits charging of accessory costs for
insured services (except in cases prescribed or provided for by agreement), numerous
situations of publicly or privately reported abuse persist.
42
If this legislation is passed, the Régie will be better equipped to carry out inspections and
investigations. As a result, the board of directors will also be required to strengthen its
monitoring of the agency, especially concerning timely action and its duty to protect the
public. This in particular includes combating illegal costs.
43
Note that at the end of the 2014-2015, the Régie’s board of directors approved an
operational and performance review process. For this process to achieve its highest
purpose, every member of the board of directors, including those who are not
independent, must be particularly watchful in abiding by their ethical obligations in the
public interest. The Régie’s quality, consistency, and effective governance depend on it.
44
Another defense in protecting citizens is found in section 32 of the Act respecting the
Régie de l’assurance maladie du Québec. On the strength of the Minister of Health and
Social Services’s ability to issue directives bearing on the Régie’s goals and orientations,
the Minister will play a decisive role should the Régie and its board of directors renege on
their duty to protect the public in achieving the goals of the Bill under consideration.
45
Various players, including non-independent members of the Régie’s board of directors,
have often argued that their hands are tied due to lack of powers and means. Passage
of Bill 92 should translate into timely action to counter misuse of the massive public funds
managed by the Régie.
13
Appendix: List of recommendations
Recommendation:
Concerning the need for action regarding protection of citizens´ rights in terms of
accessory costs for insured services
Whereas:
The coming into force of section 14 of the Regulation to amend the Code of ethics of
physicians concerning accessory costs has been postponed;
The government’s intention to prohibit accessory costs will be formalized only when
the regulatory power provided for in the twelfth paragraph of section 22 of the Health
Insurance Act, which makes it possible to authorize certain accessory costs, is
repealed;
Until then, the existence of this regulatory power leaves the public unprotected from
accessory costs;
In the meantime, the agreements with physician federations continue to apply and
accessory costs continue to be charged;
The Québec Ombudsman recommends:
R-1 That the twelfth paragraph of section 22 of the Health Insurance Act, which provides
that “despite the prohibitions set out in the ninth and eleventh paragraphs, the
Government may, by regulation, prescribe the cases and conditions in and on which a
payment is authorized,” as well as section 47 of the Bill, be repealed.
Recommendation:
Concerning the need to reimburse citizens harmed by illegal billing practices
Whereas:
The Régie must use all necessary means to recover from health professionals the
amounts obtained in violation of the Act;
The Régie should systematically reimburse the insured persons harmed by illegal
practices of this kind and that, as a rule, it has at its disposal all useful information for
doing so;
Subparagraph (1) of the second paragraph of section 22.0.1, as worded in Bill 92,
provides for reimbursement only if the insured person applies for it;
The Québec Ombudsman feels that the means of information provided for in
subparagraph (2) of the second paragraph of section 22.0.1, as worded in Bill 92, are
insufficient for ensuring adequate information;
14
The Québec Ombudsman recommends:
R-2
That section 22.0.1 of the Health Insurance Act, as proposed in section 12 of Bill 92,
be amended to introduce the obligation for the Régie to reimburse insured persons
without their having to apply.
Recommendation:
Concerning the need to prevent or repress all illegal acts by a member of a
professional order
Whereas:
The Régie must continue its collaboration with professional orders more systematically;
Only professional orders can act with respect to their members’ ethical obligations;
The communication of the relevant information to professional orders facilitates
investigations that enable undertaking of a disciplinary process;
The Québec Ombudsman recommends:
R-3
That the Régie make a point of communicating the information obtained within the
framework of applying the Health Insurance Act to the professional orders
concerned, each time it deems that a professional has contravened this Act.
Recommendation:
Concerning the need to ensure that insured persons and other whistleblowers are
protected against reprisal
Whereas:
Anyone who reports an illegal behaviour to the Régie should have legislative
protection against reprisal;
Insured persons who apply to the Régie for reimbursement should not fear reprisal;
The Québec Ombudsman recommends:
R-4
That Bill 92 be amended to include legislative protection against reprisal, that could
read as follows: “No person shall seek or attempt to seek reprisal of any nature
against a person who has applied or intends to apply for reimbursement, or who has
reported, or intends to report, illegal behaviour to the Régie de l’assurance maladie
du Québec.”
15
Recommendation:
Concerning clarification of the operating costs of doctors’ offices and medical clinics
Whereas:
An evaluation of the operating costs of doctors’ offices and medical clinics is
necessary to establish a permanent compensation system based on real costs;
An evaluation process is slow in coming and as a result, physician compensation for
these costs cannot be based on real costs;
The Régie should be mandated to carry out such an evaluation;
The third paragraph of section 2 of the Act respecting the Régie de l’assurance
maladie du Québec provides that the Régie must carry out any mandate entrusted to
it by the Minister of Health and Social Services;
The Québec Ombudsman recommends:
R-5
That the Minister of Health and Social Services mandate the Régie to design,
administer and apply a permanent program to evaluate the administrative costs of
doctors’ offices and medical clinics in order to determine their real operating costs
and financing scenarios.
Recommendation:
Concerning oversight of costs that can be charged for administrative services related
to a non-insured service
Whereas:
Control of the rates charged for administrative services related to a non-insured
services are crucial to public protection;
The Québec Ombudsman recommends:
R-6
That the regulation provided for in section 22.0.0.0.2 of the Health Insurance Act,
which will prescribe the maximum tariff that may be demanded from an insured
person for an administrative service provided by a non-participating physician, be
enacted with the timeliness required by an issue of such importance.
16
Recommendations:
Concerning the
accountability
appropriateness,
clarity
and
transparency
of
the
Régie’s
Whereas:
The provisions of Bill 92 extend the Régie’s powers in the control of the remuneration of
professionals;
As a public agency, the Régie is subject to the principles of sound governance;
The Régie’s accountability instruments should enable assessment of the impact of
Bill 92 on the Régie’s performance;
The Québec Ombudsman recommends:
R-7 That the Régie periodically report to its board of directors on its actions to oversee
remuneration.
R-8 That the Régie enter these data, the results of professional inspections and
investigations in particular, as well as budgetary impacts, in a specific section of its
annual management report.
17
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