The issue of reimbursement for out of country medical services has come to symbolize the madness that is the current state of our healthcare system.
In a nutshell, people who find that they must go outside of Canada to get medical services, either because they cannot find it here or cannot wait, must pay for it out of their own pockets. Recognizing that this situation is inequitable – only the wealthier can truly afford to do this – most if not all the provinces provide for reimbursement of such costs in limited circumstances.
Most Canadians would accept that reimbursement for out of country care cannot be provided on demand. The already burgeoning health budgets would explode. Most would accept some form of regulation. However, what they do not expect is a web of red tape that persists even when parts of it are challenged successfully in the courts.
The most pernicious aspect is the requirement for prior approval – that is, all the bureaucratic processes must be completed and result in approval before the treatment may begin. Given that people would not choose to leave the country for medical care if it were not an urgent situation, the strict enforcement of this requirement would undermine the purpose of the reimbursement provision in the first place.
We previously reported on the decision in a Divisional Court case [January 2009] which opened a window of opportunity, namely that there must be an inherent authority to permit “retroactive prior approval” where it was impossible for the person to get through the bureaucratic process in time. In one successful case, the patient’s doctor was out of the country and could not complete and submit the application form in time.
The Divisional Court described the implied power to give retroactive approval as “a narrow one, confined to urgent circumstances where prior approval cannot be obtained”. The Court gave the examples of the Ministry offices being closed, or circumstances so urgent that patients must be sent for treatment before approval can be obtained or even sought.
In response, the Ontario Ministry of Health and Long Term Care amended its regulation 552 [effective April 1, 2009] to grudgingly add the authority to grant approval after the services are rendered in “emergency circumstances” which is defined as “medical circumstances in which an insured person faces immediate risk of death or medically significant irreversible tissue damage”.
While this must be taken as an important step forward – acknowledging that it is possible to grant approval after the fact – confining that opportunity to “emergency circumstances” ignores a whole host of other reasons why a person cannot obtain approval before the services are rendered and which were addressed by the Divisional Court, such as the Ministry offices being closed or extreme urgency, according to Nicole Chrolavicius, one of the lawyers at bakerlaw who argued the cases. Ms. Chrolavicius adds: “These are the kinds of “administrative” reasons why a person may not be able to obtain prior approval and appear to be excluded from the wording of the new regulation”.