What’s Behind OHIPs Persecution of Dr. Elaine Ma?

In over 3 decades of medical practice, I’ve seen so much stupidity from government bureaucrats that I really shouldn’t be surprised by the dumb things they do anymore. And yet, every once in a while, they do something so colossally, mind numbingly and egregiously idiotic, that I’m still left stunned. Such is the situation with the ongoing persecution of Dr. Elaine Ma. Last week, the general manager of OHIP recommended, and the Minister of Health agreed, to appeal the decision of the Divisional Court that gave Dr. Ma a partial victory in her seemingly endless dispute with OHIP.

I’ve written about this before, but a brief summary follows. Links are provided for people who want more detail. My three loyal readers can just skip the next paragraph.

Dr. Ma organized, set up and paid for dozens of Covid Vaccination clinics in 2021. She billed the codes for organizing the clinics to OHIP (since she paid for all the overhead). A couple of years later OHIP told her that she should have billed an hourly rate and demanded over $600,000 in fees back. Their reasons for saying she inappropriately billed varied seemingly from week to week. The clinic was outside, not inside! She used Medical Students! Different people injected! etc.

The case eventually made its way to Divisional Court. I never thought I’d see a more laughably ludicrous comment from bureaucrats than when the Ministry of Health’s negotiations team announced there was no concern about a lack of comprehensive care family doctors. But, as Einstein once said, stupidity is infinite and these OHIP bureaucrats outdid the MoH crew by suggesting that there were “no extenuating circumstances” warranting the setting up of these Covid Vaccinations clinics. The whole country was in the midst of a pandemic, there was the largest public health crisis in my lifetime, the country was locked down, travel had ceased and so on. But these were not extenuating circumstances in these eyes of these rigid, automaton bureaucrats.

However, it was also at the Divisional Court hearings that I personally feel that we may finally have seen why OHIP is so intent on tormenting Dr. Ma. The court did scold the bureaucrats for the absurd suggestion that extenuating circumstances didn’t exist. But, as I mentioned in my last blog, the court also found:

“…that the wording of section 17.5 does not limit relief to unpaid claims; it only requires the presence of extenuating circumstances. Since OHIP typically pays claims first and reviews them later, a restriction on unpaid claims would effectively nullify the provision. The court called this interpretation unreasonable.”

Section 17.5 of the legislation that governs OHIP (which in it’s current form is found buried in Bill 138) states:

“The General Manager shall refuse to pay for an insured service if the claim for payment for the service is not prepared in the required form, does not meet the prescribed requirements or is not submitted to the General Manager within the prescribed time. However, the General Manager may pay for the service if, in the General Manager’s opinion, there are extenuating circumstances.“

I mentioned last time that OMA lawyers really need to take a deep look at this ruling as it likely had implications for other billing disputes. And, indeed, the court’s interpretation of Section 17.5 appears to be main basis for OHIPs appeal.

According to a report by Michelle Dorey Forestell (who has done an excellent job reporting on this issue over the years), the General Manager of OHIP is appealing because:

“section 17.5 contemplates discretionary payment decisions only before funds are issued, noting that other provisions of the act expressly address recovery and reimbursement of payments already made……the court’s broader reading will make physician payment disputes more complex and uncertain.”

AND

“the case raises issues of public importance, given the potential impact on how physician billing disputes are assessed and adjudicated and on the administration of OHIP.”

This, in my personal opinion, is the real reason that OHIP is fighting Dr. Ma tooth and nail now, despite having (deservedly) lost at Divisional Court. It may have started out as bureaucratic ineptitude. But it’s no longer about recouping the money. Heck bureaucrats have wasted far more on various schemes.

No, the clear sense I’m getting is that OHIP bureaucrats, having botched their attempt to bully and harass Dr. Ma, they now find themselves in a position where they may be forced to make changes to their review process. If the Divisional Court ruling holds, it means that OHIP would have to modernize how they review payments (gasp!). Who knows, they might even need to buy some new billing computers that can more efficiently review physicians claims (double gasp!). But worst of all, it means OHIP bureaucrats will actually have to do real work (triple gasp!) to develop new processes.

Dr. Ma deserves better. By acting so quickly during the pandemic she ensured Kingston was one of the most highly vaccinated areas in Ontario. She not only saved lives, she prevented many hospitalizations. She undoubtedly saved the health care system far more than $600,000 by her actions.

Unfortunately for her, rigid thinking bureaucrats were unable to use some basic common sense and recognize how urgent things were in 2021. She has been egregiously wronged as a result.

But the sliver of hope is that she may actually have the last laugh. If the appeal is denied, or she wins at a higher court again, the bureaucrats will be forced to confront their own incompetence. They will need to develop a fair, modern and rational review process. If they don’t many other physicians will use her case as precedent by saying OHIPs review of their billing comes from an unreasonable process.

By not yielding to common sense, the OHIP bureaucrats may have wound up giving themselves much more headaches. And as far as I’m concerned, it’s entirely well deserved.