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July 18, 2012

Influencing Health Costs - Extra-Billing

It must be a coincidence that on July 18th, the National Day of Action to Bring Attention to the Negotiations for a 2014 Health Accord, B.C.'s Medical Services Commission (MSC) released a report on its audit of two clinics which allegedly violated the Medicare Protection Act. Operators of the clinics have never denied that they violated the Act; their position is that the Act is unconstitutional. If the Supreme Court of Canada upholds that position, it means that government negotiations with physicians will be meaningless as any physician could bill the government or any other insurer and also charge patients whatever additional fee the market will bear. Of course, the chaos that creates will lead to the destruction of Medicare as Canadians have known it.

Dr. Brian Day frequently criticises Medicare and compares Canada to North Korea or Cuba. Such rhetoric relies on listeners not being familiar with public health care in other jurisdictions. France is frequently used as an example of a good mix between public and private health insurance, but in France private payments aren't used to cover extra-billing or queue jumping. In France private payments, covered for most people by private insurance, cover deductibles and co-payments from the public system much like extended health plans used to cover hospital user fees in British Columbia prior to the Canada Health Act.

Some physicians in Alberta, Ontario and BC practised extra-billing in the early 1980s, charging their patients in excess of what their provincial health plan paid the physicians. At that time BC also charged hospital patients a daily fee. In 1984 the Canada Health Act was introduced with the threat to financially penalize provinces that allowed extra-billing or user fees for medical or hospital services covered by public health insurance. At the last minute in 1987, BC eliminated daily fees in hospitals, and by that time all provinces succeeded in ending extra-billing by physicians. In BC the peace with physicians did not last.

In the 1990s private medical clinics were established that contracted with WCB (now WorkSafe BC) to provide access to surgeries quicker than could be provided by public hospitals. It wasn't long before some of those clinics started to offer services to those who wanted to pay extra to jump the queue for public hospitals. In the two decades queue jumping for surgeries has extended to fees for access to general practitioners. While technically a violation of guidelines set by the College of Physicians and Surgeons, some physicians won't accept new patients unless they pay an annual fee for "uninsured services", in reality, a fee for access to a physician for MSP covered services.

In 1996 the Medicare Protection Act was introduced to provide the legal framework for administering the Medical Services Plan (providing payment for physician services) by the MSC. A senior civil servant chairs the Commission. Sections 17-19 of the Act prohibit extra-billing and section 20 requires that any amounts extra-billed be refunded. The BC Health Coalition has provided an excellent summary of the dispute with Dr. Day and his clinics over alleged violations of the Act. Dr. Day does not dispute the violations; he disputes the Act. The MSC's report on the results of its audit found "that Cambie Surgeries Corporation and the Specialist Referral Clinic (Vancouver) Inc. have billed patients for publicly-insured medical services at two Vancouver clinics, the Cambie Surgery Centre and the Specialist Referral Clinic." Health Minister Mike De Jong issued a statement several hours after the release of the audit essentially saying what happens next is up to the MSC. In particular, in words only a bureaucrat could craft, he said: "Today's announcement by the Medical Services Commission is consistent with its responsibilities under the Medicare Protection Act." Duh!

The BC Liberal government has moved in slow motion on the issue of extra-billing. Keep in mind that what is at stake is whether public health insurance becomes next to useless as physicians gain power to charge whatever they want in addition to what MSP pays. There is reason to be very concerned, since a Quebec case which found its way to the Supreme Court of Canada resulted in a decision that private insurance for services publicly covered was legal when public services were provided with unacceptable delay. Cited as Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35, that case offered hope to opponents of our system of health care that a legal right exists to break the government's control over health services and fees. The litigation that flows from the MSC audit of Dr. Day's clinics will likely find its way to the Supreme Court of Canada. A decision on this issue will determine whether we see the end of Medicare as we've known it because wide open extra-billing, possibly with private health insurance, will mean less service for more costs and no equality of access.

The wait and see response of Premier Clark's government is consistent with the go slow approach the BC Liberals have shown on the extra-billing issue for the last six years. Should Adrian Dix become Premier, it will not be until he faces election for a second term that this case will come close to being heard by the Supreme Court of Canada. This is not about short term political advantage, it is about the possible emergence of private health insurance that will play a greater role than the public system we take for granted. It is about access to health care based on ability to pay compared with our current system of universal public health insurance.