The Ontario Divisional court has ruled that the Minister of Health has no general discretion to reimburse Ontarians for urgent medical services received outside Canada if they did not get prior approval. The court allowed two of the three cases being appealed, citing extenuating circumstances which would have limited application to others.
The court issued its decision on January 12, 2009 on three appeals which were heard on October 21, 22 and 23, 2008.
In each case, the appellant had sought out-of-country health services without receiving prior written approval, as required under Regulation 552 of Ontario’s Health Insurance Act.
The patients argued that under the Health Insurance Act and its regulations, the General Manager of the Out of Country Medical Program had an implied discretion to provide retroactive prior approval under urgent circumstances. The Program was put in place as a legitimate avenue to give patients access to services that were not available in Ontario in a timely fashion but the procedural barriers undermine that purpose, leading to “harsh and unfair” results.
The court rejected the argument that the General Manager has this discretion, except in very limited circumstances where the facts of the case preclude prior approval, such as the unavailability of the referring physician to make the application, or the lack of assurance of space in an Ontario hospital for an urgent diagnostic test. In these specific cases, the court decided that the Ministry must be able to provide retroactive approval where prior approval cannot be obtained. The lack of a general discretion means that, except in these very specific circumstances, applicants for reimbursement will be denied if they do not have prior approval.
CARP is pleased for the Appellants who succeeded, but the prior written approval requirement unfairly restricts access to out of country medical services. CARP remains firm that claims for reimbursement of out of country medical health services should be decided on merit; the prior approval regulations should be amended to provide a general discretion or leniency in meritorious cases.