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Bulletin

Introduction to the Health Sector Impacts of Bill 138

Fasken
Reading Time 6 minute read
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Health Law Bulletin

On November 6, 2019, Ontario's Minister of Finance introduced Bill 138, the Plan to Build Ontario Together Act, 2019 ("Bill 138").[1] If passed, Bill 138 will introduce and amend a number of acts relevant to the health sector. This bulletin is an overview of the significant aspects of Bill 138. More information about the changes proposed by Bill 138 will follow in upcoming bulletins, as will bulletins on a number of other significant announcements made in what has been a busy month for health care in Ontario.

Bill 138 proposes to (1) amend the Independent Health Facilities Act ("IHFA"), Health Insurance Act ("HIA"), Ontario Drug Benefit Act ("ODBA") and Personal Health Information Protection Act, 2004 ("PHIPA"); and (2) to enact the Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019 ("Supply Chain Act").

Independent Health Facilities Act

Bill 138 proposes a number of amendments to the IHFA, including the following:

  • Applications and Licences. Bill 138 proposes to change the "request for proposals" process to a "call for applications" process. New rules are proposed regarding applications for and issuing of licences and for the transfer, revocation and suspension of licences, in some instances broadening the authority of the Director (under the IHFA) or the Minister of Health and Long-Term Care ("Minister").
  • Payment of Claims for Services. New provisions are proposed that set out when the Minister may refuse to pay claims for services, pay reduced amounts, pay for services other than those described in a claim or require reimbursement for amounts paid.
  • Compliance Orders. Bill 138 will allow the Director and prescribed persons to make compliance orders where a licensee has not complied with the IHFA or if the Director or prescribed person is of the opinion that it is necessary to protect health and safety.

Other proposed amendments include restrictions on improper payments, incident reporting, and requiring licensees to keep records that support the claims that they make.

Health Insurance Act

Bill 138 proposes numerous amendments to the HIA, including the following:

  • Boards and Committees. Bill 138 proposes to eliminate several boards and committees.
  • Billing Privileges. Bill 138 proposes that physicians, practitioners and health facilities may only submit claims for payment if they have been granted "billing privileges".[2]
  • Publishing Information. Bill 138 proposes to authorize the General Manager (under the HIA) to publish information that relates to any payments to a physician, practitioner or health facility.[3]

Other proposed changes include regulation-making power that could deem prescribed provisions to be included in alternative fee arrangements, mandating that health cards be presented upon request, enacting rules for the appointment of reviewers to conduct inspections, increased penalties, and creating powers that allow the General Manager to refuse, reduce or alter amounts claimed.

Ontario Drug Benefit Act

Bill 138 proposes to amend the ODBA to require the executive officer of the Ontario public drug programs to deduct from the amount the executive officer pays to an operator of a pharmacy an amount determined in accordance with the regulations, subject to public consultation.

Personal Health Information Protection Act, 2004

Bill 138 proposes amendments to PHIPA. The week after Bill 138 was introduced, the government also announced amendments to Ontario Regulation 329/04 under PHIPA (the "PHIPA Regulation") and the launch of Ontario's new Digital First for Health strategy.

PHIPA Amendments

  • De-Identified Information. Bill 138 proposes to prohibit the use or attempted use of personal health information ("PHI") that has been de-identified to identify the person to whom it relates, subject to prescribed exceptions.
  • Ontario Health. Bill 138 would empower the Lieutenant Governor in Council ("LGIC") to make regulations prescribing the circumstances in which Ontario Health[4] may collect, use and disclose PHI and when PHI can be disclosed by a health information custodian or other person to Ontario Health.
  • Ontario Health Teams. Bill 138 proposes to allow the LGIC to make regulations prescribing when an Ontario Health Team[5] may collect, use and disclose PHI and when PHI can be disclosed to an Ontario Health Team.

Bill 138 also proposes to allow for regulations with respect to the use of electronic means to collect, use, modify, disclose, retain or dispose of PHI.

Ontario's Digital First for Health Strategy

  • Five Pillars. On November 13, 2019, the Minister of Health announced the province's new Digital First for Health strategy and set out five pillars that patients can expect.[6]
  • Ontario Health Teams. In the first phase of the strategy, Ontario Health Teams will be enabled to collect, use and share information among team members.[7] 

PHIPA Regulations

Finally, by an amendment to be effective December 2, 2019, Ontario Health will be named as an entity to which health information custodians are permitted to disclose certain PHI. Other amendments are made to the PHIPA Regulation to support the recently announced transfers of five existing health agencies in Ontario to Ontario Health. 

Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019

Bill 138, if passed, will enact new legislation. The key aspects include:

  • Regulating Supply Chain Management. The Supply Chain Act will enable the LGIC to create regulations that prescribe rules for "supply chain management", a term that is broadly defined; vendor performance standards and practices; and mandatory reports on supply chain management and vendor performance.
  • Application. The Supply Chain Act applies to government entities, broader public sector[8] entities and health sector entities.[9]
  • Supply Chain Management Entities. The LGIC may designate or create "supply chain management entities" to provide support for supply chain management to government entities, broader public sector entities or health sector entities.


[1] See the full text of Bill 138.

[2] This is a new defined term in the HIA, proposed by Bill 138.

[3] This power may be subject to regulations.

[4] The Connecting Care Act, 2019 created Ontario Health, referred to as the "Agency" in legislation.  See our bulletin on Ontario Health and its powers

[5] Referred to as "integrated care delivery systems" in the CCA.  See our bulletin on the introduction of the Ontario Health Team model.

[6] The five pillars are more virtual care options, expanded online booking, data access for patients, tools for health care providers, and data integration and predictive analytics. 

[7] A "digital first" approach was announced in the early stages of introducing the Ontario Health Team model. See our bulletin on digital health and the Ontario Health Team model.

[8] "Broader public sector" is narrowly defined in the Supply Chain Act when compared to other statutes, such as the Broader Public Sector Accountability Act, 2010. Under the Supply Chain Act, broader public sector includes certain school boards, government funded post-secondary educational institutions, designated children's aid societies, a corporation controlled by one or more of the above entities that exists for the purpose of purchasing foods or services for such entity(ies), and any other person or entity prescribed by regulation.

[9] "Health sector entity" includes persons and entities that receive government funding to provide health services and those corporations that are controlled by such persons and entities for the sole or primary purpose of purchasing goods and services. However, health sector entities must also be prescribed by regulation.  Until the LGIC enacts regulations, the application of the Supply Chain Act to the health care sector is not clear.

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