Toronto Mt-Sinai-Hospital

Pushing Back - Lessons from the Divisional Court re OHIP Billing Audits

Torkin Manes LegalPoint
 

On January 10, 2025, the Ontario Divisional Court released its decision in Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health). This pivotal decision not only clarifies what qualifies as a “litigant’s employee with expertise”, but more importantly emphasizes the necessity of informing litigants of the issues to be considered and giving them a meaningful opportunity to respond. Indeed, this was the very basis for our success in the Divisional Court in this case.

Background

When a physician assesses or treats a patient in Ontario, they submit claims to the Minister of Health (the “Minister”) under OHIP’s Schedule of Benefits. When services are rendered at a licensed independent health facility, such as an X-ray clinic, the clinic submits claims to the Minister under the Schedule of Facility Fees. In this case, Dixie X-Ray Associates Limited (“Dixie”) owned and operated a number of independent health facilities where a variety of diagnostic testing was performed. For such testing, the clinics would submit claims, “facility fees” to the Minister under the Independent Health Facilities Act. After a routine review of facility fee claims in 2019, a medical advisor in the Ministry took issue with the billing of certain facility fees. At the heart of these billing disputes was the use of Doppler technology while completing extremities ultrasounds, which resulted in an additional code being billed for the same patient on the same service. The Minister took the position that it did not appear that Doppler studies had in fact been performed as was contemplated by the Schedule of Facility Fees and therefore ordered reimbursement by Dixie of more than $1,000,000. This had far-reaching implications well beyond the particular period of time under review and well beyond these particular radiology clinics.

The Board’s Decision

On behalf of Dixie, we requested a hearing before the Health Services Appeal and Review Board (the “Board”) to challenge the Orders for reimbursement. The underlying question for the Board was whether adding Doppler to an ultrasound of the extremities i.e. the arms or legs, qualified as a “peripheral vessel assessment” as contemplated by the Schedule of Facility Fees.[1] At the Board hearing, the Board heard testimony from three radiologists called by Dixie, one of whom was one of Dixie’s owners and two of whom were qualified as independent expert witnesses. All were unanimously of the view that Doppler studies were done and medically necessary. Conversely, the only witness the Ministry called was a medical advisor for the Ministry of Health, who is not a radiologist but rather a family physician who had not practised medicine in more than a dozen years. Critically, she was never qualified or even put forward as an expert. Nonetheless, she testified that while she did not really understand Doppler technology and did not particularly look for it in the patient charts related to the claims in issue, she was satisfied that this billing by Dixie was improper. Amazingly, the Board relied on the testimony of that former practising physician in its decision, finding that she had in fact testified as a “litigant’s employee with expertise”. Thus, the Board affirmed the Ministry’s decision to require reimbursement of well more than $1 million for facility fees allegedly wrongfully paid to Dixie.

The Divisional Court’s Decision

We appealed that decision to the Divisional Court. There, on behalf of Dixie, we argued that the Board breached its duty of procedural fairness by finding that the Ministry’s sole witness was a “litigant’s employee with expertise” without providing Dixie with the opportunity to make submissions or call (reply) evidence on that issue.[2] Consistent with the notion that specialized administrative tribunals are to be shown deference, the Court did not take issue with the Board’s analysis of the interpretation and applicability of the facility fee codes in issue. However, the Divisional Court agreed that it was indeed “procedurally unfair for the Board to find that the physician was a litigant’s employee with expertise, without providing Dixie with advance notice and the opportunity to make submissions on that issue and to seek leave to call reply evidence.”[3] The Court also agreed that the Board appeared to rely on the physician’s evidence on matters beyond her expertise. [4]

Key Takeaways

This decision makes clear that litigants are entitled to know the basis on which evidence is being admitted, before that occurs, particularly where, as in this case, counsel expressly objected to the evidence being admitted. It also gives better definition to a relatively uncommon area in the law of evidence, that of a “litigant’s employee with expertise”. Perhaps more significantly, however, the decision does indeed signal that merely because OHIP, or any governmental agency for that matter, digs in, such does not necessarily mean that they are right. Clearly, pushing back, through hearings and on appeal, will sometimes be necessary.