OHA Analysis & Positioning
Re: Bill 36, Local Health System
Integration Act, 2005
Status/timelines
• Introduced November 24th
• Second Reading debates commenced
November 29th; passed December 7th
• Public Hearings to take place from January
30th – February 2nd in Toronto, London,
Thunder Bay and Ottawa (Note: additional
hearing dates may be added)
• Clause-by-clause consideration currently
scheduled for February 13th and 14th
• Third Reading likely during special sitting of
Legislature scheduled for February 13 to
March 2nd
2
Overview of key provisions*
1. Governance/Accountability of LHINs
2. Role/Mandate of LHINs
3. Funding/Accountability Agreements
4. Integration Powers
5. Labour Relations implications
6. LGC/Ministerial powers
7. Implications for Providers
8. Consequential amendments
*For additional information respecting these issues, see OHA Template PPT
and Issue-Specific Backgrounders found at www.oha.com, “Communications
– Legislative Issues & Analysis”
3
Key issues for amendment
OHA supports development of LHINs to enhance system
integration, but key safeguards are needed to ensure greater
transparency and effectiveness of LHINs, and to mitigate against
arbitrary decision-making. The OHA should therefore offer the
following substantive amendments to the legislation
I.
Governance/accountability
•
•
II.
Ensuring the selection process provides for local representation and
skill-based boards
Establishing when LHIN meetings will be in-camera
Role/mandate
•
•
•
Ensuring that objects of LHINs acknowledge the importance of patient
choice, quality and access, and teaching/research
Identifying specific components of the LHIN “Integrated Health Service
Plan” (IHSP)
Providing a definition of “community” with which LHINs must engage
respecting the development of the IHSP and an articulation of what is
meant by the term “engagement”
4
Key issues (cont’d)
II. Role/mandate (cont’d)
•
•
•
•
Articulation of guiding principles re: funding of providers
Clarifying the role of LHINs re: provincial programs
Clarifying which agreements may be assigned to the LHINs
Ensuring LHINs do not have the ability to require financial
reporting by foundations
III. Integration powers
•
Including criteria for making integration decisions or orders
–
–
–
•
•
Takes into account patient care (choice, quality, access, etc.)
Decisions must be evidence-based
Minister’s orders should be consistent with provincial and/or
LHIN plan
Defining “public interest” that LHINs/Minister must consider
when issuing an integration decision/order
Providing for due process prior to issuing integration
5
decisions or orders (i.e., opportunity to be heard)
I. Governance/accountability
Issue #1 – Selection of LHIN board members
Background
•
Appointment of LHIN board members to be made by LGC but legislation
fails to provide for any selection criteria for these appointments, nor
does it set out any selection process
Proposed positioning/amendments sought
•
Amend legislation to provide for minimum standards respecting board
appointments to ensure that the selection process:
–
–
–
–
Provides for local representation
Takes into account skills, expertise and experience of individuals
To the extent possible, allows for open, transparent call for nominees
Permits LHINs to provide list of potential nominees for LGC consideration
Rationale
•
To enhance effectiveness of LHINs and consistent with good
governance practices, need to ensure that the LHIN selection process
provides for local representation and skill-based board and role for the
LHIN boards in succession planning
6
Governance/accountability
(cont’d)
Issue #2 – Open board meetings
Background
• The legislation stipulates that LHIN board meetings will be open to the
public, unless regulations specify otherwise
• Although there is a requirement that there be public consultation prior to
the making of regulations, the Minister may shorten the time period for
consultation or forgo it altogether where, “the urgency of the situation
requires it,” the regulation clarifies the intention or operation of the Act, or
is of a minor or technical nature
Proposed positioning/amendments sought
• Set out in legislation criteria for when LHIN boards may meet in-camera
Rationale
• To ensure clarity and consistency (regulations may be changed at any
time), matters of a substantive nature should be reflected within the
legislation. Meeting standards for hospitals are also set out in Bill 123, the
Transparency in Public Matters Act
7
II. Role/mandate
Issue #1 – Objects of LHINs
Background
• Although the legislation states that the LHIN is not to make an agreement
or arrangement which restricts or prevents a patient from receiving
services based on geographic residence, the 14 corporate objects of the
LHIN do not speak to the importance of patient choice, quality and
access. The legislation is also silent on the role of academic health
science centres
Proposed positioning/amendments sought
• Amend the objects of the LHIN to explicitly acknowledge the importance
of patient choice, quality and access, as well as teaching and research
Rationale
• Patient care should be paramount in LHIN decision-making
• As important systemic goals, the value of teaching and research should
be articulated within the corporate objects of the LHIN
8
Role/mandate (cont’d)
Issue #2 – LHIN Plan
Background
• The legislation requires the LHIN to consult the community on, and prepare an
Integrated Health Service Plan (IHSP) which will ultimately form the basis of LHIN
integration decisions. However, the legislation provides little detail as to the required
content of the IHSP
• The legislation states only that the IHSP “shall include a vision, priorities and
strategic directions for the local health system and set out strategies to integrate the
local health system.” The IHSP must also be consistent with the provincial strategic
plan, LHIN funding and regulations
Proposed positioning/amendments sought
• Amend the legislation to include a description of the specific elements or
components of the IHSP (e.g. scope, timeframes, resources, expected outcomes
and implications for providers)
Rationale
• Given that the IHSP will be the basis of community engagement and will play a
central role of the IHSP in the development of integration decisions, it is critical that
there be greater specificity respecting the scope and nature of this plan
9
Role/mandate (cont’d)
Issue #3 – Community engagement
Background
•
The LHINs are required to “engage the community of persons and entities involved with the
local health system” in the development of the Integrated Health Services Plan (IHSP) and
while setting priorities, but the legislation does not provide a definition of “community”, nor
how such community engagement shall occur
•
The LHIN objects speak to the importance of “establishing formal channels for community
input and consultation,” but the nature of community engagement is to be set out in
regulation
Proposed positioning/amendments sought
•
•
Provide a definition of “community” with which LHINs must consult respecting development
of IHSP which includes among others, citizens and stakeholders such as health care
providers
Set out the nature and extent of the community engagement (i.e., notice, meetings,
opportunity to provide written comments, time limits, etc.) in the legislation
Rationale
•
•
The consultative process will be critical in determining what programs/services will be
offered within a community and will ultimately have a significant impact on health care
providers. It is therefore vitally important that all stakeholders, including providers, be
explicitly acknowledged as part of the consultative process
Because community engagement standards constitute a fundamental basis of the
integration decision process, they should be clearly articulated
10
Role/mandate
(cont’d)
Issue #4 – Funding
Background
•
The LHINs are empowered to allocate and provide funding to providers for services provided
“in or for the geographic area of the LHIN” on terms the LHIN considers appropriate
•
LHINs are only required to allocate funding in a manner consistent with funding the LHIN
receives from the Minister, its accountability agreement with the Minister and “any other
regulatory requirements.” No further details are provided with respect to how funding will be
allocated
•
Ministry of Health and Long-Term Care (MOHLTC) staff have advised that the policy with
respect to funding of providers is still currently in development
Proposed positioning/amendments sought
•
The legislation should articulate guiding principles re: funding to providers. These principles
should include: (1) equitable access to the continuum of care and meeting health care needs;
(2) effective, high quality care: (3) overall cost-containment: (4) operation efficiency within the
context of value for money; (5) equitable and transparent allocation of funds; (5) stability and
predictability in provider operations;*(6) consistency with the IHSP and provider roles; and (7)
provincial standards
Rationale
•
Providing some guiding principles will ensure that funding of providers builds on the
collaborative work of hospitals and the MOHLTC through the Joint Policy and Planning
Committee (JPPC)
*For (1)-(5), See OHA, Stability and Sustainability: A Multi-Year Funding Policy Framework for Ontario
Hospitals, 2002
11
Role/mandate (cont’d)
Issue #5 – Provincial programs
Background
•
Beyond the objects of the LHIN (“to participate and co-operate…in the development and
implementation of…provincial health care priorities, programs and services”) the legislation
does not address the question as to how provincial programs will be defined and managed,
nor how facilities with a provincial mandate will operate in a LHIN environment
•
MOHLTC officials have indicated that the policy respecting provincial programs is still under
development. However they have confirmed that:
–
–
The legislation is intended to signal a change; hospitals are to be primarily responsible to the LHIN
The intent is to ensure that hospitals with provincial programs are responsible to a single LHIN.
However, the service accountability agreement with the LHIN will acknowledge the hospital’s mandate
with respect to services provided to individuals outside the hospital’s LHIN
Proposed positioning/amendments sought
•
Include provisions in the legislation clarifying the relationship between provincial agencies,
LHINs and facilities with a provincial mandate and affirming the importance of the provision of
appropriate care in respect of these programs
Rationale
•
Including provisions respecting provincial programs will provide for greater certainty and clarity
•
Need to ensure that there are consistent standards for all LHINs with respect to provincial
programs
12
Role/mandate (cont’d)
Issue #6 – Assignment of agreements
Background
•
Subsection 19(3) permits the Minister to assign to the LHINs his/her rights and obligations “under
all or part of an agreement” with a health service provider. This overrides any contrary provision
in the agreement
•
The provision for partial assignment allows the Minister to retain responsibility for certain
functions (e.g. funding), but assign others (e.g. oversight and performance responsibilities) to the
LHIN including agreements such as:
–
–
–
Hospital Accountability Agreements (HAAs) - As agreements between the Minister and a health service
provider, they fall squarely within ss. 19(3). This is a reasonable delegation of authority
Hospital On-Call Coverage (HOCC) - Agreement and Alternate funding arrangements/plans (AFAs/AFPs)
Minister and hospital are parties; fact that OMA is also a party does not preclude application of ss. 19(3).
LHIN provision overrides the current provision in the HOCC Agreement that prevents a party from
assigning the Agreement without prior written consent of the parties
Proposed positioning/amendments sought
•
Amend ss. 19(3) to ensure that hospital-physician agreements are not caught by the provision
and therefore cannot be assigned to the LHINs
Rationale
•
Agreements of this nature are centrally negotiated and should also be administered on a
provincial basis
•
MOHLTC staff have indicated that the intent was not to include such agreements within this
assignment provision
•
The amendment would simply provide needed clarity and would give effect to the MOHLTC’s 13
intent
Role/mandate (cont’d)
Issue #7 – Reporting by foundations
Background
• Legislation expands financial reporting by foundations to LHINs
– PHA has been amended to permit regulations requiring a hospital foundation
to provide financial reports to LHINs and to prescribe rules to follow in making
and providing such reports
– The Minister previously had this power under the PHA. Regulations were
issued in 1996 and 1998, but were subsequently repealed
Proposed positioning/amendments sought
• Ensure that LHINs do not have the ability to require foundations to
produce financial reports
Rationale
• Foundations do not fall within the scope of LHINs and previous efforts by
the Minister to require such reporting were successfully challenged by
foundations
14
III. Integration powers
Issue #1 – Criteria for decisions/orders
Background
• The legislation fails to provide any criteria upon which integration
decisions/orders by the LHIN or Minister will be made, other than they are
not to be contrary to the IHSP and the LHIN’s accountability agreement
with the Minister
Proposed positioning/amendments sought
• Amend legislation to provide for criteria re: issuing integration decisions or
orders, such as:
– Takes into account patient care (choice, quality, access, etc.)
– Considers other factors such as safety; availability of health human resources;
and obligations respecting teaching and research
– Decisions must be evidence-based and consistent with provincial and/or LHIN
plan
Rationale
• To guard against arbitrariness and in the interests of ensuring evidencebased decision-making, it is important that objective criteria be considered
15
prior to issuing an integration decision/order
Integration powers (cont’d)
Issue #2 – Defining “public interest”
Background
•
•
•
The LHINs and the Minister must consider the “public interest” when issuing integration
decisions or orders, but the legislation does not provide a definition of “public interest”
The Public Hospitals Act (PHA) definition includes: (a) the quality of the management and
administration of the hospitals; (b) the proper management of the health care system in general;
(c) the availability of financial resources for the management of the health care system and for
the delivery of health care services; (d) the accessibility to health services in the community
where the hospital is located; and (e) the quality of the care and treatment of patients
Commitment to the Future of Medicare Act (CFMA) definition includes: clear roles and
responsibilities regarding the proper management of the health care system and any health
resource provider; shared and collective responsibilities; transparency; quality improvement;
fiscal responsibility; value for money; public reporting; consistency, trust; reliance on evidence; a
focus on outcomes and the quality of the care and treatment of individuals; timely access to care;
accessibility; and any other prescribed matter
Proposed positioning/amendments sought
•
Include a definition of “public interest” similar to that found in the PHA and CFMA
Rationale
•
Including a definition of “public interest” ensures that patient care and community needs are
given due consideration and provides some safeguards against arbitrary decision-making
16
Integration powers (cont’d)
Issue #3 – Due process
Background
•
The legislation permits LHINs and the Minister to issue integration decisions or orders without
having first provided affected providers with due process (i.e., an opportunity to be heard). The
Statutory Powers Procedures Act which provides for minimal procedural standards does not
apply. Providers have only 30 days to request reconsideration of the integration decision/order
and there is no legislative requirement for LHINs to consider the submissions of the affected
party
•
The legislation does not provide for any 3rd party appeal process for integration
decisions/orders by the LHIN or Minister. These are subject to judicial review, but such
reviews are limited
Proposed positioning/amendments sought
•
Amend the legislation to provide for minimum procedural standards. This might include: (1)
notice of an intended decision to affected provider; (2) opportunity for the provider to respond
prior to the issuance of a final decision/order by LHIN/Minister; (3) a requirement that the LHIN
or Minister take into account submissions made by the provider; and (4) issuance of decision
Rationale
•
Given the potential impact of integration decisions/orders, affected stakeholders, including
providers, should have an opportunity to be heard in advance of the decision/order, particularly
if no right of a third party appeal is made available
17
Other issues for consideration
1.
Labour provisions
•
2.
Accountability for quality of care
•
3.
While LHINs will assume operational responsibilities and may direct the
hospital through the service accountability agreements to meet specific
performance standards respecting quality of care, hospital boards will
continue to be held accountable to patients for quality of care. The LGC, may
in turn, upon recommendation by the Minister, appoint a supervisor under the
PHA if the board has not discharged its duty, but this power has not typically
exercised in respect of quality of care
Hospital governance
•
4.
Beyond increased costs to the system, it is yet unclear as to the potential
impact these provisions will have on the hospital sector. However, the
proposed use of PSLRTA to facilitate integration is appropriate and we do not
believe that there are any fundamental issues which would merit advocating
for amendments in this regard
•
•
•
Legislation does not alter the voluntary governance of hospitals and states
that LHINs cannot require a provider to change composition or structure of its
membership or board. CFMA provisions respecting CEO compensation now
apply only to hospital CEOs.
Post-proclamation implementation issues
Not all provisions come into force at the same time; may be source of
confusion, uncertainty
Labour provisions will likely result in significant costs to system
Resources of LHINs may not be sufficient to fulfill mandate
18
Issues for further examination
and discussion with MOHLTC
1. Potential impact of amendments in PHA to
definition of “hospital” and “patient”
respecting payments for drugs
2. Role/impact on speciality hospitals
3. Potential privacy concerns
4. Resolution of cross-border LHIN issues
5. Need to retain provincial standards
19
Questions
and Discussion