Decision Requiring Physician to Repay OHIP over $600,000 for COVID-19 Vaccines Overturned
A recent case from Divisional Court overturned the decision of the Health Services Appeal and Review Board (the “Board”) requiring Dr. Elaine Ma to repay $600,962.16 to OHIP for COVID‑19 vaccinations administered at several mass clinics that she organized during the COVID-19 Pandemic. Dr. Ma’s clinics delivered over 25,000 COVID-19 vaccinations. The Court sent the matter back for reconsideration by the Board, in light of the court’s finding that the Board’s interpretation of section 17.5 of the Health Insurance Act (“HIA”) unreasonable. Section 17.5 permits OHIP to authorize payment to physicians where not all requirements under the HIA are met, but “extenuating circumstances” exist.
This case provides interesting insights into several HIA interpretation issues:
a. Who can qualify as physician’s employee for delegated services?
b. When can physicians bill for services provided by another physician?
c. When does section 17.5 apply and what will qualify as “extenuating circumstances”?
A. Who Can Act as a Physician’s “Employee” for Delegated Services
Board’s Analysis
The Schedule of Benefits for Physician Services (the “Schedule”) allows delegation only when the service is performed by the physician’s employee in the physician’s office. The term “employee” is not defined in the HIA and therefore it fell to the Board to determine how to interpret the term. The Board applied the interpretation of the word used in OHIP Bulletin 4215 (2001), that an employee is typically someone who receives monetary payment with tax/CPP/UI deductions. The Board also relied on the OMA 2020 Quick Reference Guide, which similarly framed employment as requiring an employment contract and CRA‑reported income.
The Board accordingly found that most individuals administering vaccines at the clinics were not Dr. Ma’s employees as:
Medical students received no monetary compensation, only training and meals.
Other physicians and residents were paid, but Dr. Ma acknowledged they were not her employees.
2. Divisional Court’s Analysis
Before the Court, Dr. Ma argued for a broad interpretation of “employee”, bearing in mind the context of a public health emergency. The Court upheld the Board’s finding as reasonable, holding that:
The Board used a coherent interpretive approach.
Reliance on Bulletin 4215 was permissible even if it was older.
It was reasonable to consider the absence of monetary compensation and payroll deductions.
Dr. Ma’s preferred broader interpretation was possible, but the Board’s narrower one remained reasonable.
B. When can physicians bill for services provided by another physician?
Board’s Interpretation
Dr. Ma argued that even if delegation rules were not met, she could bill for vaccine administrations performed by other physicians because the Schedule of Benefits allows different physicians to perform different “components” of a service, with only one fee billed and apportioned among them.
The Board rejected this argument, finding that looking at the Schedule as a whole, permitting different components to be done by different physicians was the exception, not the rule. The general rule is that physicians can only bill for their own services. The “components of a service” exception applies only when a listed service in the Schedule explicitly contemplates multiple discrete components (e.g., surgery + post‑operative care).
The Board found that the administration of a vaccine is not a multi‑component service; it is a single, unitary act. The Board also found that record‑keeping deficiencies compounded the issue—most records from Dr. Ma’s clinics did not identify who administered the vaccine, making it impossible to determine whether components of the service were split.
2. Court’s Interpretation
The Court upheld the Board’s finding as reasonable, noting that commentary in the Schedule explicitly tied the “components of service” to specific multi‑stage medical services. Vaccination tasks—even if labour‑intensive—do not constitute distinct “components” under the Schedule’s meaning.
C. When can extenuating circumstances apply under section 17.5?
Board’s Analysis
Section 17.5 allows OHIP to pay claims despite non‑compliance with form or prescribed requirements if, in the General Manager’s opinion, there are extenuating circumstances. The Board found that section 17.5 did not apply in Dr. Ma’s case because:
This section was only intended to apply where payment has not yet been made; and
Even during a public health emergency, Dr. Ma “still had time and the obligation” to familiarize herself with billing requirements.
2. Court’s Analysis
The Court held the Board’s approach to section 17.5 was unreasonable, for two reasons.
First, the wording of section 17.5 did not support the Board’s interpretation that it was only applicable before payments have been made. Moreover, OHIP’s payment process normally pays first and reviews later; therefore, limiting section 17.5 to pre‑payment cases would make the provision virtually meaningless.
Second, the Court found that the Board failed to recognize obvious extenuating circumstances. The Court emphasized multiple uncontested facts showing exceptional circumstances:
A global public health emergency;
Government directives urging rapid mass vaccination;
Over 25,000 vaccinations delivered;
Dr. Ma’s efforts were acknowledged by both OHIP and the Board as substantial and beneficial;
All services were insured, medically necessary, and no one else would be paid for them;
COVaxON’s design prevented entry of vaccinator names;
Dr. Ma paid over $86,000 to assisting physicians and residents;
Her misunderstandings were good‑faith, technical missteps, not bad‑faith conduct; and
The strict requirements of OHIP billing are technical, and errors were unsurprising during crisis conditions.
The Board failed to engage with any of these factors and instead offered a single sentence concluding Dr. Ma still “had time” to learn the billing rules. The Court found this to be unreasonable, concluding that these circumstances “substantially lessen the seriousness of the non‑compliance” and qualify as extenuating circumstances under section 17.5.
The matter was remitted to the Board to determine the amount Dr. Ma must reimburse after considering the above listed facts under section 17.5.
Conclusion
This case underscores the tension between the strict technical framework of OHIP billing and the practical realities of delivering urgent public health services during a crisis. It is worth noting that in its submissions to the Court, OHIP commended Dr. Ma’s “commitment and achievement in organizing these clinics and providing mass access to vaccinations during the COVID-19 pandemic.” But then in the same breath, argued that Dr. Ma was required to repay the fees billed for these clinics.
The Divisional Court’s decision appropriately recognized that rigid application of OHIP billing rules cannot be blind to extraordinary circumstances, like the COVID‑19 pandemic. By remitting the matter to reassess the reimbursement amount in light of genuine extenuating circumstances, the Court ensures a fair and context‑sensitive outcome—one that both respects the law and honours the critical role that frontline physicians played during an unprecedented public health emergency.
For guidance on OHIP billing, delegation rules, or responding to repayment decisions, please contact us.
