The past few weeks have seen numerous announcements affecting the health sector, as governments across Canada seek to quickly respond to the outbreak of COVID-19. The new measures have focused on increasing capacity of the sector and slowing the spread of the outbreak. This bulletin summarizes select legislative changes, government orders and other significant measures affecting health care providers and organizations across Canada.
For additional information and insights visit the Fasken Coronavirus (COVID-19) Knowledge Centre.
On March 17, 2020, the Province of Alberta declared a state of public health emergency under the Public Health Act, in effect for 90 days. The Chief Medical Officer of Health has issued the following notable orders under the Public Health Act:
- an order on March 20, 2020 restricting visitors to auxiliary hospitals, nursing homes, licensed living accommodation and seniors lodges to one designated essential visitor who provides care and companionship for the well-being of the resident, with certain exceptions where a resident is near the end-of-life;
- an order on March 25, 2020 requiring all operators and service providers of a health care facility in Alberta (being an auxiliary hospital, a nursing home, licensed supportive living accommodation and service providers under the Mental Health Services Protection Act) to adhere to operational protocols. The protocols are for sites not experiencing an outbreak of COVID-19 and include symptom monitoring, notification and response for residents and staff, enhanced cleaning, restrictions on shared spaces, meals and recreation, and screening on entry; and
- an order on March 27, 2020 that places of business offering non-essential health services and wellness services are no longer permitted to offer or provide services to the public. There is an exception for non-essential health services deemed urgent by the health professional providing the services. Individual regulatory colleges have issued guidance to their members on the meaning of emergency services.
On March 23, 2020, Alberta Health announced the addition of temporary physician billing codes to the schedule of medical benefits, retroactive to March 17, 2020, to compensate physicians for providing virtual care.
On March 16, 2020, British Columbia announced that it would compensate physicians for providing virtual care services. On March 20, 2020 the College of Physicians and Surgeons of British Columbia updated its Telemedicine Standard to clarify expectations of physicians.
On March 18, 2020, British Columbia issued an order declaring a state of emergency under the Emergency Program Act, initially in effect for 14 days, which can be extended. The Provincial Health Officer has also issued a number of orders under the Public Health Act, some of which are described below.
British Columbia's hospitals have been restricted to urgent and emergency procedures. The province's health authorities have also placed restrictions on their facilities (including long-term care homes), acting on the guidance of the Ministry of Health.
On March 23, 2020, the Provincial Officer of Health issued an update to regulated health professionals practising in community settings (as opposed to hospitals and other designated facilities or institutions). The expectations include that:
- non-essential and elective services involving direct physical contact with patients and clients be reduced to minimal levels;
- health professionals provide care via telephone and video technology where possible and appropriate; and
- health professionals that provide emergent, urgent and/or essential care must assess and screen patients for symptoms of COVID-19, physically distance where possible, and use infection control practices.
Several regulatory colleges have issued guidance and direction to their registrants.
On March 26, 2020, the Provincial Officer of Health issued a notice pursuant to the Public Health Act to:
- licensees of long-term care facilities and private hospitals, and registrants of assisted living residences;
- regional health boards, the Provincial Health Services Authority, Providence Health Care and other operators of designated hospitals, and operators of provincial mental health facilities; and
- contractors and sub-contractors who provide staffing for the above facilities,
ordering them to provide personal and employee related information of staff to the Provincial Officer of Health to support decisions about the allocation of staff among facilities.
On March 26, 2020, the Minister of Citizens' Services issued an order under the Freedom of Information and Protection of Privacy Act permitting health care bodies (as defined under the Act), the Ministry of Health and the Provincial Health Services Authority to disclose personal information for COVID-19-related purposes, including communicating with individuals respecting COVID-19, supporting a public health response to the COVID-19 pandemic, or coordinating care during the COVID-19 pandemic.
On March 27, 2020, the Provincial Officer of Health issued an order under the Public Health Act to licensees of long-term care facilities and private hospitals and contractors who provide staffing to restrict the movement of staff between facilities by ensuring that staff members only work at one facility, except with approval of the medical health officer. The Provincial Officer of Health ordered employees and volunteers of long-term care facilities and private hospitals to comply. The order does not apply to dieticians, laboratory technicians, nurse practitioners, paramedics, pharmacists, physicians, resident physicians or any other class of person who are exempted by the medical health officer and who provide visiting services at a facility.
On March 17, 2020, the Government of Manitoba suspended visitors to long-term care homes and seniors lodges. Effective March 19, 2020, visitors were suspended in all acute care facilities. In both settings, exceptions exist for compassionate or end-of-life reasons on a case by case basis, and in certain hospital departments. Visitors are also subject to screening.
On March 20, 2020, the Province of Manitoba declared a state emergency under The Emergency Measures Act.
Effective March 23, 2020, elective (non-urgent) surgeries began to be suspended across the province and non-essential and diagnostic testing was postponed.
A Provincial COVID-19 Recruitment and Redeployment Group has been created to augment staffing levels in key areas.
On March 29, 2020, Manitoba's COVID-19 Incident Command announced that it approved the establishment of a COVID-19 Central Unit to consolidate, monitor and report on data generated across the province's health system. All regional health authorities and service delivery organizations are required to report data every 24 hours at a minimum.
On March 19, 2020, the Government of New Brunswick declared a provincial state of emergency pursuant to the New Brunswick Emergency Measures Act. A Renewed and Revised Mandatory Order was issued on March 25, 2020 that, among other things:
- prohibits regulated health professionals from providing in-person services except those services they deem essential for the health and wellbeing of their patients, which are conditional on compliance with all applicable control measures in the COVID-19 Guidance for Primary Care Providers in a Community Setting; and
- prohibits all unregulated health services providers, with the exception of those providing direct support to regulated health services providers, from seeing patients.
Newfoundland and Labrador
Newfoundland and Labrador imposed restrictions, effective March 16, 2020, for regional health facilities, including the following:
- only urgent or emergent surgeries will take place;
- cancer services and in-centre dialysis will continue;
- only urgent or emergent appointments at outpatient clinics will continue;
- only urgent or emergent diagnostic and therapeutic procedures will continue; and
- visitors are prohibited in any hospitals, with exceptions for visitors for patients at end-of-life, patients in obstetrics delivery rooms and children who are inpatients.
On March 18, 2020 the Government of Newfoundland and Labrador declared a public health emergency under the Public Health Protection and Promotion Act, which will be in effect for a period of 14 days and may be extended for consecutive 14-day periods. The following orders affect the health sector in Newfoundland and Labrador:
- a Special Measures Order issued on March 23, 2020 which, among other things, prohibits visitation to personal care homes, including long-term care homes, other than in exceptional circumstances, including end-of-life; and
- a Special Measures Order issued on March 24, 2020 ordering all private health clinics, except physician and nurse practitioner clinics to close immediately, and only provide urgent or emergent services, and encouraging clinicians to provide virtual care.
The government announced on March 20, 2020 that doctors can offer virtual care services over the phone or using video conferencing, and that there will be no cost to patients for virtual medical services that are insured by the province's Medical Care Plan.
On March 24, 2020, the Government of the Northwest Territories declared a state of emergency pursuant to the Emergency Management Act. The Northwest Territories has not yet issued emergency orders or enacted legislation specifically affecting health care providers and organizations in the territory.
On March 22, 2020, the Government of Nova Scotia declared a state of emergency pursuant to the Emergency Management Act, which will remain in effect for 14 days unless renewed or terminated earlier.
The Medical Officer of Health issued an order on March 24, 2020 under the Health Protection Act, among other things:
- restricting visitors to long-term care facilities and residential care facilities for persons with disabilities licensed under the Homes for Special Care Act, and the movement of residents to the facility, other than in exceptional circumstances;
- providing that all self-regulated health professionals and podiatrists can only provide emergency or urgent care services, and may provide virtual care for non-emergency or elective care services if authorized to do so. This restriction does not apply to physicians, pharmacists, nurse practitioners, nurses and paramedics. Moreover, except for podiatrists, all unregulated health care providers engaged in private practice are restricted from providing in-person services and may only provide virtual care services; and
- prohibiting dentists from entering their offices and engaging in the practice of dentistry, except where it is necessary to perform an emergency dental procedure to protect the health and welfare of a patient.
On March 20, 2020, the Government of Nunavut declared a state of emergency pursuant to the Public Health Act. As of March 29, 2020, Nunavut had not yet issued emergency orders or enacted legislation specifically affecting health care providers and organizations in the territory.
On March 15, 2020, the Deputy Premier and Minister of Health requested that all hospitals ramp down elective surgeries and other non-emergent clinical activity to free up capacity.
As of March 16, 2020, Ontario announced that only essential visitors are permitted to visit residents of long-term care homes, such as visitors of residents who are very ill or require end-of-life care.
On March 17, 2020, the Government of Ontario declared an emergency under the Emergency Management and Civil Protection Act ("EMCPA"), which will remain in effect for 14 days and may be extended for consecutive 14-day periods. The following orders and communications issued over the past two weeks affect health care providers and organizations in Ontario:
- the government enacted an order under the EMCPA on March 21, 2020 that supersedes hospital collective agreements and permits hospitals to engage in redeployment, staffing, and scheduling as needed to deal with COVID-19, as further described in Fasken's earlier Labour, Employment & Human Rights Bulletin;
- the government enacted an order under the EMCPA on March 23, 2020 to give enhanced abilities to long-term care homes to free-up important staff members, identify staffing priorities, and develop, modify and implement redeployment plans, as further described in Fasken's earlier Labour, Employment & Human Rights Bulletin;
- a directive was issued by Ontario's Chief Medical Officer of Health on March 23, 2020 under the Long Term Care Homes Act, 2007 (the "LTCHA") that restricts long-term care home residents from leaving the home for short visits with family and friends;
- the Ministry of Health sent a memo notifying public hospitals on March 26, 2020 that the submission requirements for approval requests under subsection 4(2) of Ontario's Public Hospitals Act have been waived, and granted general approval to public hospitals for capacity expansion provided certain conditions are met;
- an order was announced on March 28, 2020 to allow long-term care homes to redirect their staffing and financial resources to essential tasks; and
- the Ministry of Long-Term Care announced on March 28, 2020 that it would redeploy its inspectors to support staff, facilitate the coordination of care, act as point people with Public Health Ontario, and support long-term care homes in the prevention and containment of COVID-19.
The Government of Ontario has also introduced a number of legislative and regulatory changes over the last two weeks in response to the outbreak of COVID-19:
Long Term Care Homes Act, 2007
On March 20, 2020, O. Reg 72/20 amended O. Reg 79/10 under the LTCHA to grant increased flexibility to licensees to respond to COVID-19. To provide long-term care homes with greater flexibility in addressing staffing requirements, the amendments:
- expand the exemptions from the requirement that at least one registered nurse who is employed by the home and part of the home's regular nursing staff be on duty at all times where a pandemic prevents a registered nurse from attending work in the home; and
- remove the prescribed minimum hour requirements for the Director of Nursing and Personal Care of a long-term care home during the course of a pandemic.
To allow long-term care homes to hire staff and volunteers more quickly, the amendments:
- loosen the requirements around criminal reference checks for newly-hired staff members and volunteers during the course of a pandemic; and
- relax certain upfront orientation and training requirements for new hires.
In addition, on March 24, 2020, O. Reg 83/20 amended O. Reg 79/10 under the LTCHA to require the discharge of a long-stay or short-stay resident from a long-term care home upon written request from the resident or his or her substitute decision-maker due to a pandemic. The amendments also include the procedure to be followed for re-admission, on request, within three months from the date of discharge. Further, O. Reg 83/20 introduces provisions that expedite admission for a person occupying a hospital bed, or for a person from the community, to a long-term care home during the course of a pandemic.
Changes to OHIP Coverage and Billing
Ontario's Ministry of Health has implemented the following changes to Ontario's public health insurance coverage and billing procedures to minimize barriers to accessing care during this time:
- effective March 14, 2020, temporary new OHIP billing codes were introduced for the provision of routine health care services over the telephone or through videoconferencing to insured persons during the COVID-19 outbreak;
- effective March 19, 2020, the three-month waiting period for OHIP coverage has been temporarily removed from Regulation 552 under the Health Insurance Act. Individuals who are currently in their three-month waiting period are eligible for OHIP coverage as of March 19, 2020 and all individuals enrolled for OHIP after March 19, 2020 will have immediate coverage;
- physicians who perform services for uninsured patients in a hospital setting will be remunerated by the hospital at existing rates listed in the Schedule of Benefits for Physician Services (claims for these services cannot be submitted to OHIP). For services performed outside the hospital setting, the Ministry is introducing temporary fee codes, effective March 21, 2020, for the provision of medically necessary physician services provided to uninsured patients in the community; and
- effective March 21, 2020, a new fee code is temporarily listed for eligible assessment centres that differentiates physician payment for after-hours, weekend hours and holidays as an insured service.
Retirement Homes Act, 2010
On March 19, 2020, O. Reg 68/20 amended O. Reg 166/11 under the Retirement Homes Act, 2010 to require that all reasonable steps be taken in retirement homes to follow any directives, guidance, advice or recommendations issued by the Chief Medical Officer of Health under the Health Protection and Promotion Act and to long-term care homes regarding COVID-19.
Bill 138, Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019
On March 17, 2020, a regulation was filed under the yet to be proclaimed Supply Chain Management Act (Government, Broader Public Sector and Health Sector Entities), 2019 ("SCMA"). O. Reg 92/20 designates the Ministry of Health as the supply chain management entity in respect of health sector entities for the purpose of responding to COVID-19 and any issues related to the response to and recovery from COVID-19.
Prince Edward Island
On March 16, 2020, the Government of Prince Edward Island declared a provincial state of emergency pursuant to the Public Health Act, which will remain for 30 days. As of March 29, 2020, Prince Edward Island had not yet issued emergency orders specifically affecting the health sector.
The government announced on March 25, 2020 that all health facilities, including hospitals and long-term care facilities, are closed to visitors, other than for patients in palliative care, intensive care, neonatal intensive care, obstetrics and pediatric units who are permitted to have one designated visitor who is an immediate family member or care partner. Further, dentists, optometrists, opthalmologists, physical therapists, occupational therapists, podiatrists and other regulated health professionals are only permitted to provide urgent care.
As of March 14, 2020, all non-essential visits to hospitals, residential and long-term care centres, intermediate resources, and private seniors' residences are prohibited.
The Minister of Health and Social Services has issued the following orders:
- an order on March 21, 2020 amending, temporarily, several provisions in collective agreements and employment conditions applying to management personnel and non-unionized salaried personnel in the health and social services network to ensure the continuity of services in the health sector as the public health emergency
goes on. Among the mechanisms granted to employers are the ability to:
- cancel union leaves (except as necessary to deal with the emergency health situation insofar as the employer is able to ensure the continuity of the activities) and cancel/suspend other authorized leaves of absence of any kind (paid or unpaid, including vacation time);
- modify their employees' schedule and regular work day to have the necessary human resources available; and
- hire additional personnel, granting the status of temporary salaried person to every person so hired.
The order requires health and social services institutions to consult local unions or the associations concerned before applying the measures of the order, unless the urgency of the situation prevents them from doing so. In that case, the unions and associations must be contacted as soon as possible;
- an order on March 22, 2020 which allows personnel of public services to be redeployed to another function or location, including into the health and social services network, despite any collective agreements applicable. This measure also applies to the conditions of employment of management personnel and non-unionized personnel of the public service. The department or body applying a measure under the order must consult the local unions or associations concerned, unless the urgency of the situation prevents them from doing so. In that case, the unions and associations must be contacted as soon as possible;
- an order on March 23, 2020 mandating a lockdown of residential and long-term care centres and private seniors' residences. Any outing must be supervised, except in cases of essential health-related services or humanitarian considerations. Visits are prohibited except for health-related services or humanitarian considerations or as necessary for repairs and maintenance required for safety of the living unit. Operators of private seniors' residences must establish a mechanism to ensure that products or goods can be delivered to residents without direct physical contact; and
- an order effective March 25, 2020 prohibiting all non-priority services and activities until April 13, 2020. Certain health services are considered priority services - including private clinics, such as dentists and optometrists, but for emergency services only.
On March 17, 2020 (effective March 16, 2020), the Chief Medical Officer of Saskatchewan ordered that visitors to long-term care homes, hospitals, personal care homes and group homes are restricted to family visiting for compassionate reasons. This order was restated in orders over the days that followed, and on March 26, 2020 was replaced by an order that visitors are restricted to family or designates visiting for compassionate reasons and that all visitors must undergo additional health screening prior to entry.
On March 18, 2020, the Province of Saskatchewan issued a declaration of emergency under The Emergency Planning Act. On March 20, 2020, the Chief Medical Officer ordered, effective March 23, 2020, that dental, optometry, ophthalmology, occupational therapy and podiatry clinics could only provide urgent services or procedures. The Chief Medical Officer's order on March 26, 2020 added physical therapy and chiropractor clinics.
On March 24, 2020, the Saskatchewan Health Authority ("SHA") announced plans to create additional capacity, including the creation of:
- dedicated spaces to cohort COVID-19 patients within facilities;
- COVID-19 designated hospitals in Saskatoon and Regina and other areas of the province, where required;
- additional community based acute care capacity where required (e.g. field hospitals in school gyms, community centres, rinks, etc.); and
- a provincial Emergency Operations Centre and Integrated Health Incident Command Centres for each of the SHA service areas (Saskatoon, Regina, Rural and North).
On March 27, 2020, the Government of Yukon declared a state of emergency pursuant to the Civil Emergency Measures Act. As of March 29, 2020, Yukon had not yet issued emergency orders or enacted legislation specifically affecting health care providers and organizations in the territory.
The Federal Government
The Government of Canada has also taken a number of steps within its jurisdiction that are relevant to health care providers and organizations.
On March 24, 2020, the Governor in Council approved the Interim Order Respecting the Importation and Sale of Medical Devices for Use in Relation to COVID-19, made by the Minister of Health on March 18, 2020. Governor in Council approval extends the order from an original length of 14 days to the earliest of (i) the day on which regulations having the same effect come into force or (ii) one year after the day on which the interim order was made. The interim order allows for the expedited authorization of the importation or sale of medical devices used in the diagnosis, treatment, mitigation, or prevention of COVID-19.
Bill C-13, the COVID-19 Emergency Response Act, received Royal Assent on March 25, 2020. Among other things, Bill C-13:
- provides one-time funding of $500 million for the fiscal year beginning on April 1, 2019 through the Canada Health Transfer to provinces and territories for their critical health care system needs and to support mitigation efforts as needed;
- provides the Governor in Council with the authority to make regulations to address any future shortages of therapeutic products, including drugs and medical devices, effective until October 1, 2020; and
- amends the Patent Act to, among other things, provide that the Commissioner of Patents must, on the application of the Minister of Health, authorize the Government of Canada and any person specified in the application to make, construct, use and sell a patented invention to the extent necessary to respond to a public health emergency that is a matter of national concern. The ability to make an authorization is in place until September 30, 2020.
This bulletin addresses updates published up to March 29, 2020.
 This does not include information about physicians, resident physicians, nurse practitioners, paramedics, delivery persons, trades people, visitors or any other class of person exempted by the Provincial Officer of Health.
 Includes, but is not limited to, massage therapists, naturopathic doctors, Chinese medicine practitioners, acupuncturists and any other complementary and alternative medicine practitioners.
 Providing that no institution, building or other premises or place shall be operated or used for the purposes of a hospital unless the Minister of Health has approved the operation or use of the premises or place for that purpose.
 Inspectors include nurses, dieticians, and physiotherapists.
 A second regulation, O. Reg 91/20: Health Sector Entities, prescribes "health sector entities" to which the SCMA will apply.
 Allocated as follows in section 24.71: (a) for Ontario, $193,721,000; (b) for Quebec, $112,871,000; (c) for Nova Scotia, $12,922,000; (d) for New Brunswick, $10,340,000; (e) for Manitoba, $18,216,000; (f) for British Columbia, $67,464,000; (g) for Prince Edward Island, $2,089,000; (h) for Saskatchewan, $15,627,000; (i) for Alberta, $58,141,000; (j) for Newfoundland and Labrador, $6,952,000; (k) for Yukon, $543,000; (l) for the Northwest Territories, $598,000; and (m) for Nunavut, $516,000.