Perspectives in Health

Understanding the Ongoing Dispute Between the Ontario Medical Association and Ministry of Health

 

On September 5, 2017, the Ontario Medical Association (“OMA”) and the Ontario Ministry of Health and Long-Term-Care (“MOHLTC”) entered a mediation and binding arbitration process to negotiate a new Physician Services Agreement (“PSA”). The OMA is a professional association that represents the interests of medical doctors in Ontario. PSAs govern the amount that physicians are paid by the Ontario Health Insurance Plan (“OHIP”) for each medical service they provide. The Province has been without a new PSA for almost three years when the last agreement expired in fall 2014. In 2015, the OMA filed a constitutional challenge under the Canadian Charter of Rights and Freedoms (the “Charter”), alleging that the MOHLTC’s failure to provide a binding arbitration process violated Ontarian physicians’ right to freedom of association. This article provides background and a brief overview of the reasons contributing to the current dispute.

 

            The OMA represents approximately 44,000 doctors and medical student members.[1] The OMA is legally recognized under the Health Insurance Act[2] (“HIA”) and Commitment to the Future of Medicare Act.[3] All Ontario doctors are obligated to pay annual dues to the OMA under the OMA Dues Act (1991).[4] The primary responsibility of the organization is to negotiate PSAs with the MOHLTC. PSAs are enacted as schedules to the HIA.

 

            The MOHLTC is the government office responsible for the administration of the Ontario healthcare system. The office is responsible for the government of public hospitals and OHIP, but, according to its mission statement, is “less involved in the actual delivery of health care.” Instead, the MOHLTC focusses on “establishing overall strategic direction” for the system, which includes “monitoring and reporting on the performance of the health system” and “planning for and establishing funding models and levels of funding for the health care system”.[5] The MOHLTC also delegates many of these responsibilities. At the time of writing, the current Minister of Health is the Honourable Dr. Eric Hoskins (Liberal).

 

In 2012, the OMA and Ministry of Health formed a contract called the “OMA Representation Rights and Joint Negotiation and Dispute Resolution Agreement” (“RRA”). The RRA imposed an obligation on the MOHLTC to negotiate in good faith and participate in a “Facilitation-Conciliation” process with the OMA before amending or enacting PSAs.[6] The terms imposed by the RRA were non-binding, which in part led to the current dispute.

 

Dispute Between the OMA and the MOHLTC (2017)

 

The OMA and the MOHLTC have been unable to negotiate a PSA since the last agreement expired in March 2014. The RRA facilitation and conciliation process failed to form a new agreement that fall. The two parties were unable to agree to terms that simultaneously allowed for provincial savings and accommodated the rising costs of practicing medicine in Ontario.[7] The RRA did not provide direction for situations that exhausted the conciliation process. The OMA and the MOHLTC proceeded informally with negotiations. Political commentators used this as a platform to appraise various stakeholders in the healthcare sector and to critique doctors and the MOHLTC.[8] This commentary was politically damaging for the Ontario government and the OMA. In the interim, physicians continued to practice under the expired 2012 PSA rates.

 

In 2015, the Ontario government took unilateral action to impose its PSA terms on the OMA. In January, the MOHLTC proposed a PSA framework to the OMA that was described as a “final offer.” The OMA refused to accept this offer and instead proposed a two-year price freeze to allow for further negotiation.[9] Later in January, the MOHLTC amended regulations under the HIA that imposed a 2.65% global reduction in all physician fees.[10] The OMA was not consulted, and requested that the RRA be amended to incorporate a binding arbitration mechanism to preclude further unilateral action. The MOHLTC also revised the conditions and programs governing physicians’ access to patent enrollment fees, which affected how family doctors – and especially new graduates – are compensated.[11] The OMA was not consulted on this change. In October of 2015, the MOHLTC amended regulations under the HIA that cut physician fees by an additional 1.3% and another 1% against physicians with gross annual billings of more than one million dollars.[12] The OMA alleged that the MOHLTC’s amendments recovered over $690 million dollars from physician billings during 2015–2016. This amount exceeded figures presented to the OMA during conciliation and those included in the “final offer.”[13]

 

In October of 2015, the OMA responded to the MOHLTC’s unilateral fee cuts by filing a constitutional challenge under the Charter. The OMA alleged that the MOHLTC infringed Ontario doctors’ right to freedom of association, protected under section 2 (d) of the Charter and contravention of the RRA.

 

In 2016, the Ontario Government budget included a 7% overall reduction to healthcare spending from the previous year. The budget also included a hard cap on physician compensation during future PSA negotiations. These factors sparked a public feud between the Ministry and OMA. The OMA claimed government cuts would result in “increased wait times for tests and procedures,” clinic closures, and “reduced or laid off [clinical] staff.”[14] The MOHLTC provided physicians’ billing information to the Toronto Star, which published that a group of 500 physicians had billed an excess of one million dollars in 2015.[15] The Minister of Health blamed an “inequity in the fee code structure.”[16]

 

The OMA was politically divided during 2016. In May, the organization elected President Dr. Virginia Walley. She promised that the OMA would not agree to a new PSA unless the Ministry agreed that future negotiations would be subject to binding arbitration. Two months later, Dr. Walley presented a tentative PSA to the OMA membership. The President had reached an arrangement with the MOHLTC that substituted binding arbitration for a “co-management” framework.[17] The tentative plan was put to a vote by the OMA membership in August. Upwards of 60% of the OMA’s membership voted against the deal.[18] Malcontent with the tentative deal fostered support for groups that had ‘broken away’ from the OMA during the PSA dispute. These included “Concerned Ontario Doctors”[19] and the “Coalition of Ontario Doctors,”[20] which alleged that the OMA was incapable of properly representing physician interests. Amidst infighting, another tentative PSA was voted down in November 2016.

 

In January 2017, the political feud between the OMA and splinter groups unfolded dramatically. A contingent of 25 of the 275-member OMA governing council delivered a letter that voiced a lack of confidence in the leadership of the organization.[21] The OMA held a general meeting for the membership to vote on their confidence in the organization. A week later, the entire executive team resigned.[22] The incident was widely described as a “coup” in the press, quoting both physicians inside the organization and members of the public. This disruption at the organization was followed by weeks of restructuring of the organization’s governance system.

 

Binding Arbitration

           

The Ontario government reversed its position on binding arbitration following the OMA ‘coup’. In February 2017, Premier Kathleen Wynne released a statement that indicated the government would engage in binding arbitration with the OMA.[23] By May, the OMA had appointed new executives and elected a new President, Dr. Shawn Whatley. The MOHLTC presented Dr. Whatley with a tentative binding arbitration framework on May 15. The OMA called a general meeting of members to vote on accepting the framework. At the meeting on June 17, 2017, a 65% majority of the OMA membership voted in favour of accepting the proposed binding arbitration framework.[24]

 

            In August 2017, the binding arbitration framework was added as a schedule to the RRA, replacing the defunct facilitation and conciliation process.

 

The OMA and MOHLTC began binding arbitration on September 5, 2017. At the time of writing, arbitration is ongoing. Some physicians resisted the binding arbitration process and critiqued the OMA’s legal representation.[25] Nevertheless, it is very likely that arbitration will resolve the current dispute between the parties.

 

All sources relied on for this article are publically accessible via Ontario Medical Association news releases, the Coalition of Ontario Doctors (online), Concerned Ontario Doctors (online), and statements made by the Ontario Government.

 

This article includes excerpts from a working research paper (tentative title: “Employment Status and Ontario Doctors”) by Christopher McGoey. Christopher is a second-year JD student and current President of the Osgoode Health Law Association.

 

This article is part of the Osgoode Health Law Association’s Perspectives in Health column. Keep up to date with the HLA on Facebook (Osgoode Health Law Association, Osgoode Health Law Association Forum) and Twitter (@OsgoodeHLA).

 

[1] The Canadian Press, “Ontario Doctors vote in favour of framework for binding arbitration with government” (17 June 2017), The Toronto Star, online: <https://www.thestar.com/news/canada/2017/06/17/ontario-doctors-vote-in-favour-of-framework-for-binding-arbitration-with-government.html>; Ontario Medical Association, online: <https://www.oma.org/sections/about/ontario-medical-association/how-and-where-to-join-oma/>.

[2] Health Insurance Act, RSO 1990, c H.6, s 5.

[3] Commitment to the Future of Medicare Act, SO 2004, c 5, s 12(2).

[4] Ontario Medical Association Dues Act, 1991, SO 1991, c 51, s 2.

[5] “About the Ministry” (10 November 2017), The Ontario Ministry of Health and Long-Term Care, online: <http://www.health.gov.on.ca/en/common/ministry/default.aspx>.

[6] Ontario Medical Association v Ontario (Minister of Health and Long-Term Care) and Lieutenant Governor-in-Council of Ontario, [2015] (Notice of Application at para (g)-(h)) [Ontario Medical Association Notice of Application], online via Doctors for Justice: <http://www.doctorsforjustice.ca/site/wp-content/uploads/2016/07/Notice-of-Application-Oct-29-2015-1.pdf>.

[7] Ontario Ministry of Health and Long-Term Care, Conciliator’s Report: In the Matter of a Conciliation Under the OMA Representation Rights and Joint Negotiation and Dispute Resolution Agreement, 2012 (Toronto: MOHLTC, 2014), online via the Ontario Legislative Library Catalogue: <http://lois.ontla.on.ca:8001/cgi-bin/Pwebrecon.cgi?BBID=329263>.

[8] See, for example: Maaike deVries and Jonathan Gravel, “Ontario Doctors vs. the Ontario government: the public deserves better” (30 January 2015), Healthy Debate (web page – opinion), online: <http://healthydebate.ca/opinions/ontario-doctors-vs-ontario-government-public-deserves-better>;

Theresa Boyle, “Making OHIP billings public could alter Ontario’s health-care landscape” (9 December 2014), The Toronto Star, online: <https://www.thestar.com/news/canada/2014/12/09/making_ohip_billings_public_could_alter_ontarios_healthcare_landscape.html>.

[9] Ontario Medical Association Notice of Application, supra note 6 at para (n).

[10] O Reg 15/15, s 2, amending RRO 1990 Reg 552.

[11] Ontario Ministry of Health and Long-Term Care, “New Graduate Entry Program Description”, OHIP Bulletin – Primary Health Care Services 11138 (Toronto: 1 October 2015) [New Graduate Entry Program Bulletin]; Ontario Ministry of Health and Long-Term Care, “Changes to Primary Health Care Physician Payments”, OHIP Bulletin – Primary Health Care Services 11125 (Toronto: 15 February 2015) [Changes to Managed Entry Bulletin].

[12] O Reg 283/15, s 2-3, amending RRO 1990 Reg 552.

[13] Ontario Medical Association Notice of Application, supra note 6 at para (aa).

[14] Ontario Medical Association, News Release, “Ontario budget fails to address growing demand for physician services” (25 February 2016), online: <https://www.oma.org/sections/news-events/news-room/all-news-releases/ontario-budget-fails-to-address-growing-demand-for-physician-services/>.

[15] Rob Ferguson and Theresa Boyle, “Ontario’s top-billing doctor charged OHIP $6.6M last year”, The Toronto Star (22 April 2016), online: <https://www.thestar.com/news/queenspark/2016/04/22/ontarios-top-billing-doctor-charged-ohip-66m-last-year.html>.

[16] Keith Leslie, “500 doctors billed Ontario’s health insurance plan $1M each; one billed ‘staggering’ $6.6M”, Global News (22 April 2016), online: <https://globalnews.ca/news/2656128/ontario-ophthalmologist-billed-province-staggering-6-6-million-in-2015/>.

[17] Ontario Ministry of Health and Long-Term Care, News Release, “Ontario and OMA Reach Tentative Agreement: Government and OMA Committed to Improving Services for Patients” (11 July 2016), online: <https://news.ontario.ca/mohltc/en/2016/07/ontario-and-oma-reach-tentative-agreement.html>.

[18] “Doctors vote not to accept Ontario’s proposed fee arrangement”, CBC News (15 August 2016), online: <http://www.cbc.ca/news/canada/toronto/doctors-vote-not-to-accept-ontario-s-proposed-fee-agreement-1.3722071>.

[19] Concerned Ontario Doctors, online: <http://www.carenotcuts.ca/>.

[20] Coalition of Ontario Doctors, online: <https://coalitionofontariodoctors.ca/>.

[21] Theresa Boyle, “Doctors set to vote on ousting Ontario Medical Association leaders”, The Toronto Star (28 January 2017), online: <https://www.thestar.com/news/canada/2017/01/28/doctors-set-to-vote-on-ousting-ontario-medical-association-leaders.html>.

[22] Theresa Boyle, “Ontario Medical Association executive resigns en masse”, The Toronto Star (6 February 2017), online: <https://www.thestar.com/news/gta/2017/02/06/ontario-medical-association-executive-resigns-en-masse.html>.

[23] Ontario, Office of the Premier, Statement, “Premier’s Statement on Renewed Negotiations with the Ontario Medical Association” (16 February 2017), online: <https://news.ontario.ca/opo/en/2017/02/premiers-statement-on-renewed-negotiations-with-the-ontario-medical-association.html>.

[24] Ontario Medical Association, News Release, “Members Ratify Binding Arbitration Framework” (17 July 2017), online: <https://www.oma.org/sections/news-events/news-room/all-news-releases/members-ratify-binding-arbitration-framework-agreement//>.

[25] Memoranda, Andrew Lokan to Coalition of Ontario Doctors (2 June 2017) at 1, via Coalition of Ontario Doctors, online: <https://coalitionofontariodoctors.ca/wp-content/uploads/2017/06/Memo-re-Binding-Arbitration-Framework-June-2-2017.pdf>.