Loading...
HomeMy WebLinkAbout1991-0749.Prentice.93-04-06T, ONTARIO EMPLOYES DE LA COURONNE : CROWNEMPLOYEE.,~ DEL'ONTARiO "' GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS OUNOA$ S?"R~ET W~ST, sUITE 2'fO~, TORONTO, ONTARfO, MSG ~;z~$ TEL~PHONE/T~L~-PHONE: (4 ~6) 326~ r$$B RUE DUNOAS OUEST, ~uREAU 2100, TORONTO (ONTARIO,. MSG IZ8 FAC$.IMILEIT~-L~COPlE .' (4~6) 326-;396 749/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B]%RGAINING Before THE GRIEVANCE SETTLEMENT BOBRD OPSBU (Prentice) Grievor - and- The Crown in Right of Ontario (Ministry of Health) Employer BEFORE O. Gray Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Toop RESPONDENT Staff Relations officer Management Board of Cabinet HEB/~INQ November 2, 1992 AWARD The issue in this proceeding is whether, as the union argues, the grievor is entitled to reimbursement for charges she incurred for physiotherapy services in late 1990 and early 1991. The union relies on Article 44.2(d) of the collective agreement which was in effect from January 1, 1989 to December 31, 1991: Article 44 - SUPPLEMiENTARY HEALTH AND HOSPITAL INSURANCE 44.2 Effective January 1, 1990, the Supplementary Health and Hospital Plan shall provide for the reimbursement of... one hundred percent (100%) of the cost of the following services: (d) Charges for the services of a chiropractor, osteopath, naturopath, podiatrist, physiotherapist, speech therapist, and masseur (ff licenced and practicing within the scope of their licence), to a maximum of twelve dollars ($12) per visit for each visit not subsidized by O.H.I.P. (emphasis added) The employer relies on the emphasized words. It says that the grievor was not entitled to reimbursement under this provision because all of the gr~evors' visits to her physiotherapist were subsidized by O.H.I.P. The union argues that the emphasized words do not apply in the circumstances of this case. The grievor had hip surgery in July 1990. On her discharge from hospital in October 1990, her doctors referred her to physiotherapy. She visited Blaser's Physiotherapy Clinic on ten occasions in November and December 1990 and once in January 1991. The cost of the treatment she received during those visits was paid by O.H.I.P. In addition, however, the clinic directly billed Ms. Prentice $7.00 per visit ($9.00 in January) for "assessment and reassessment." Martin Blaser is a physiotherapist at the clinic Ms. Prentice attended. He is a member of the Board of Directors of the Ontario Physiotherapy Association ("the 0.P.A.'). He was a member of an ad hoc committee which developed that organiza- tion's policy on uninsured services in 1988-89 and represented the association in negotiations with the Ministry of Health in the period 1990~92. He testified that some physiotherapy clinics have licences which permit them to bill and be paid by O.H.I.P. for physiotherapy treatment ordered by a referring physician. The province stopped issuing such licenses in 1964. By the time in question here, only about half of the physiotherapy practices in the province had such licences. The Blaser clinic is one of them. There is no suggestion that practices which do not have such a license are less qualified to provide physiotherapy than those which do, but services for which O.H.I.P. would pay when received at a licensed "Schedule 9" facility must be paid for by the patient or his or her insurer when received at any other facility. O.H.I.P. pays Schedule 9 facilities a "per visit" fee. The amount of the fee is adjusted periodically. It was $11.50 when the grievor received her treatments. Facilities which bill O.H.I.P. cannot charge the patient extra for services for which O.H.I.P. pays, but they can charge the patient for "uninsured services." Facilities which do not bill O.H.I.P. charge what they wish. Mr. Blaser's understanding is that those other facilities charge considerably more per visit than the payment his clinic receives from O.H.I.P. Mr. Blaser testified candidly that by 1989, his clinic felt that the fee paid by O.H.I.P. was too low for the amount of time then spent with patients. It faced a choice of opting out of O.H.I.P., increasing patient volume (spending less time with each payment) or billing for "uninsured servicesf In 1989 Mr. Blazer was serving on a committee of the O.P.A. which was considering the issue of uninsured services. As a matter of professional standards, the O.P.A. requires that all physiotherapists "assess" or "reassess" patients in relation to the treatment they provide. Assessment involves reviewing medical records, taking a history, conducting a physical examination and making a judgment about the treatment to be given. The O.P.A. distinguished this from the actual treatment which the physiotherapist decides to give as a result of the assessment. It took the position that as O.H.I.P. paid only for the actual treatment,' the associated assessment or reassessment constituted an uninsured service for which Schedule 9 facilities could reasonably bill patients directly. The O.P.A. advised the owners of Schedule 9 facilities of this position in June 1989. At about that time, Mr. Blaser's clinic began charging patients a "per visit" fee for assessment and reassessment. Mr. Blaser testified that since June 1989, the Ministry of Health has acknowledged the correctness of the O.P.A. position that assessments and reassessments are uninsured services even when performed in relation to insured treatments, so that it is lawful for Schedule 9 facilities to charge patients directly for such services, and for insurance carriers to provide coverage for the expense of such services. Mr. Blaser confirmed that the fees his clinic charged tl~e grievor were for assessments or reassessments made during visits when she received physiotherapy treatments for which O.H.I.P. made payments. In each case, the physiotherapist made the assessment or reassessment immediately before administering the treatment indicated by the assessment or reassessment. Mr. Blaser said this was "for efficiency." He acknowledged that the assessment or reassessment could have been made during a separate visit, but said he would prefer not to do that. The issue before us is not whether it makes sense that some physiotherapy clinics can bill O.H.I.P. and others cannot. That is simply a background fact, one which existed at the time the parties' collective agreement was negotiated. We are not called upon to decide or comment upon the propriety of the Ministry's accepting, as it apparently has, that a facility which charges O.H.I.P. for a physiotherapy treatment can bill the patient directlx for the process involved in determining that the patient should receive that particular treatment. We note that neither party makes any argument about whether or not this practice or the possibility of it would have been known to the parties when the applicable collective agreement was negotiated. The issue here, as we noted at the outset, is whether the grievor is entitled to reimbursement for~harges she incurred for physiotherapy services. That turns on the meaning of subparagraph (d) of Article 44.2 of the applicable collective agreement, which says that there can be reimbursement only in respect of a visit "not subsidized by O.H.I.P." During each of her visits to the physiotherapist, the grievor received treatment, for which O.H.I.P. paid, and assessment, for which O.H.I.P. did not pay. Were such visits "subsidized by O.H.I.P.'? The union notes that the word "subsidized" in subparagraph (d) of Article 44.2 is not modified by the phrase "in whole or in part" or by other like words. It says that a visit is not a visit "subsidized by O.H.I.P,' unless 0.H.I.P. pays for ail of the services provided during the visit. It notes that an assessment or reassessment could be provided during a visit separate from the one in which the physiotherapist provides services paid for by 0.H.I.P. In that case, it says, the assessment ~isit would not be a visit subsidized by O.H.I.P., and the fee for the assessment would be eligible for reimbursement. We agree with the employer that a subsidy is a payment which covers all or any portion of the cost of something, and "subsidized" has a corresponding meaning. Accordingly, a visit is "subsidized by O.H.I.P." if O.H.I.P. makes any payment in respect of it, even if the payment does not cover the entire cost of the visit. The result does not seem outlandish. Against the background described by Mr. Blazer, it appears likely that the $ i2.00 payment for unsubsidized visits was intended to roughly balance the O.H.I.P. payment for subsidized visits, recognizing that employees might have to obtain or chose to obtain physiotherapy services at a facility not on Schedule 9. We do not have to decide whether the grievor would have been entitled to reimbursement if the assessment services and treatment services had been provided during separate visits. Nor do we have to decide the similar question whether an employee receiving treatment not paid for by O.H.I.P. could increase his or her benefit under this provision of the collective agreement by dividing the necessary treatment into a larger number of shorter visits. The peculiarity identified by the union's hypothetical springs from the fact that the reimbursement (like the O.H.I.P. fee) is a "per visit" amount, and not from the fact that reimbursement is available only for visits in respect of which O.H.I.P. makes no payment. We find that the griever was not entitled to reimbursement under subparagraph (d) of Article 44.2 for the charges she incurred for her physiotherapist's assessment and reassessment services, because the subparagraph only obliges the employer to make payments in respect of visits not subsidized by O.H3.P. and all of her visits to that physiotherapist were "subsidized by O.H.I.P." within the meaning of that subparagraph. Accordingly, this grievance is dismissed. Dated atToronto this 6th day of April, 1993. Owen V. Gray, Vice-Chair E. Seymour, Member M. O'Toole, Member