OHIP Billings – Secrecy that Can’t be Justified

On June 1, 2016 the Information and Privacy Commissioner of Ontario released decision PO-3617 ordering the Ministry of Health to disclose the names associated with the top 100 OHIP billers in response to a request from the Toronto Star over two years ago.

The record created in response to the request sets out the total dollar amounts paid annually, for the years 2008-2012, to the top 100 OHIP billers, their names and their medical specialties. The ministry disclosed the dollar amounts, but withheld the physicians’ names and some of the specialties under the personal privacy exemption at section 21(1) of the Freedom of Information and Protection of Privacy Act (FIPPA), making it impossible to know the exact amounts billed to OHIP on an individual doctor/specialist basis.

An appeal to the Information and Privacy Commissioner of Ontario has resulted in a bold and long overdue decision that doctors’ OHIP billings are not their ‘personal information’. The issue of whether such information should be protected under rules of privacy is not a new one. The last Order on point (PO-3435), issued while Dr. Ann Cavoukian was still the province’s commissioner, was in December of 2014. That case reviewed previous decisions in which the office concluded “OHIP billings that can be connected with specific doctors are their personal information”. In ordering the release of all billings made by a named surgeon in that case, the adjudicator drew a distinction between fee-for-servicing billings and doctors being compensated on a monthly basis pursuant to an Alternative Payment Plan funded by the ministry. In my view this was a flawed decision that gave health professionals the ability to continue to claim their fee-for-service billings were somehow personal. However it was certainly a safe decision for the Commissioner’s office as it avoided the wrath of health professionals, and their very powerful lobbying group on doctors’ fees, the Ontario Medical Association (OMA).

In PO-3617 now at issue, the adjudicator ordered that the record of concern, revealing the top 100 OHIP billers be disclosed in its entirety because it does not contain personal information. Even if the privacy exemption or other exemptions did apply, FIPPA’s public interest override section can be used in this case.

When the OMA, which represents Ontario’s 29,000 doctors tried to pin the IPC down to past decisions, Adjudicator Higgins simply pointed out: “It is important to note that the principle of binding precedent, or stare decisis, does not apply to require administrative tribunals to follow their own previous decisions.” Essentially, the IPC was off-track before, but now, under the leadership of Commissioner Beamish, it’s time to set things right.

The Arguments made by the Ontario Medical Association

In fighting the appeal, the OMA claimed that one of their primary concerns is that the public would equate billings with income. The amount that doctors spend on overheads varies widely. But this seems irrelevant to the fact that the public has the right to know how much of the taxpayers’ money goes to our province’s doctors.

Another argument put forward was that section 17(1) of FIPPA, which exempts third party information from an access request, applies on the basis that the billing information is commercial and/or financial information whose disclosure could reasonably be expected to cause commercial harm. This argument seems extremely self-serving, and as pointed out by Higgins, is inconsistent with the OMA’s view that OHIP billing and payment information is personal in nature.

Another desperate attempt to fight the appeal rested on the argument that physicians are not government employees and operate as independent contractors, and that some physicians practice through corporations. Again, this only supports the conclusion that the OHIP payments are business information and not personal information.

I find it somewhat interesting that as an independent consultant, if I am awarded a government contract, there is no question that the amount of that contract and the work that it will cover is made public by the government agency who will pay the bill. It doesn’t matter if I work within a corporate framework, and it doesn’t matter what percent of that budget will go straight to covering my expenses. It’s about transparency and the public rightfully knowing where public funds go….why are doctors any different?

A Call for Transparency and Boldness

The province spends $11.6 billion on compensation to doctors annually. Of that, $7.9 billion is in fee-for-service payments from the Ontario Health Insurance Plan. Higgins stated: “…it is an inescapable fact that these payments consume a substantial amount of the Ontario government’s budget and regardless of the fact that they physicians are not pubic servants, these amounts reflect payments for public services provided to the public and paid for by taxpayers.”

Fifteen years ago, in 2001, when Canada introduced a new and internationally admired federal privacy law, doctors claimed their prescription patterns (essentially indicating their opinions on  various drugs) were their personal information. The case was appealed to the Office of the Federal Privacy Commissioner of Canada where a bold Commissioner George Radwanski stated  that a prescription can perhaps most appropriately be regarded as a “work product”. This decision came much to the relief of  IMS Health, whose very business is to sell such data to drug companies, thus allowing them to effectively engage in targeted marketing. The OMA fought the decision unsuccessfully, and the term “work product” spread like wildfire – it was not only picked up in numerous decisions of the courts, but provincial legislatures also adopted carve-outs in the definition of personal information for work product information within their own privacy laws.

The OMA was not happy, but clearly they are even more upset about the latest blow that could impact their doctors’ wallets. We can expect an appeal and I hope the Ontario IPC will take this as far as they need to.

It takes a bold privacy commissioner’s office to step in a direction that disturbs the status quo. It’s about that clear distinction of when privacy is a fundamental right that must be protected, and when the concept of privacy is being bent out of shape and abused out of self-interest. We are finally seeing the confidence that this province needs to assess OHIP billings in an informed manner – real confidence not just on the surface, that has the potential for real change.

The Compelling Public Interest

Higgins wrote that there is “no question that the substantial expenditures of public funds do relate to the public interest.” From the information that the Ministry of Health did disclose, the top-billing physician in 2012 received $6.1 million while the 100th top biller received $1.4 million. The release of physician-identified billings could lead to more effective contract negotiations between the province and doctors, and would most certainly allow for a fairer discussion of physician compensation.

What does Accountability Mean….Really?

Now that the Commissioner’s office has done a complete 180 on whether OHIP billings are personal information, it’s interesting to note that Dr. Ann Cavoukian stated to the media “the justification for such a departure will need to be explored.” In my view, the only justification that needs to be explored is why it has taken so long to break down the walls around physician-identified billings on the one hand, while tooting the horn of open government on the other. After all, without transparency, how can we hold the Ministry of Health accountable? To build a society that is sustainable and stable in the long-term, we must be prepared to take responsibility for the changes that will be required to more effectively manage public sector resources.