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Can Ottawa force the provinces to pay for virtual care?
Federal Health Minister Mark Holland wants to change the interpretation of the Canada Health Act. It is doubtful that he will succeed. (Pexels Photo)
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Health-care financing could be the subject of a new tug-of-war. This time, remote care is at stake. Ottawa recently warned the provinces that they would have to pay for all virtual care, which includes care paid for by companies, even if it is provided by a nurse or from another province.
These tensions between the federal government, the provinces and some lobbies in the insurance sector were fairly predictable, given the increased use of telemedicine since the pandemic and the absence of a clear and coherent framework. They are linked to federal Health Minister Mark Holland’s intentions (and those of his predecessor) to modernize the interpretation of the Canada Health Act (CHA). The aim is to prevent patients from having to pay for “medically necessary care” when that care would normally have been covered under a public plan if it had been provided in-person by a physician. The stakes are high, since 10 million Canadians have access to such services, mainly through their jobs.
Of course, Holland’s claims are based on a principle dear to the CHA, namely that access to care should be linked to the need for care and not to the ability to pay for it. Currently, those who can afford to pay for virtual care – or who are lucky enough to have a private group insurance plan that includes it – have access to services that are not available to the population as a whole.
This is especially true in Quebec, where the public system is severely lacking when it comes to offering virtual care. Moreover, a regulatory change in December 2022 formalised two-tier access to telemedicine through group insurance plans. In its recent policy proposal, the Canadian Medical Association recommends that these services be covered by provincial and territorial public plans.
Does this mean that the federal minister can make the changes announced in a simple letter? Limits to this approach can already be identified.
At least three interpretation letters have been issued since the CHA was adopted in 1984. The most recent issued in 2018 by Ginette Petitpas Taylor concerned diagnostic services (such as medical imaging tests). Despite this letter and a $42 million reduction in the Canada Health Transfer (CHT) in 2023, out-of-hospital diagnostic services are still not covered in Quebec.
Letters of interpretation which may also be referred to as ‟guidelines” or ‟position statements” are not legally binding, and the authorities that use them must not seek to alter the meaning or scope of legislative or regulatory texts. They may, however, have political effects, particularly in the context of federal-provincial relations.
What is an ‟insured service?”
When the CHA came into force in 1984, it replaced federal laws that had previously helped define Canada’s public health insurance plans. The Hospital Insurance and Diagnostic Services Act of 1957 and the Medical Care Act of 1966 were aimed at universal coverage of hospital and medical services on a cost-sharing basis between the federal government and the provinces. There is nothing to suggest that, at any time, these laws were interpreted as covering care provided by non-physicians outside hospitals.
The concept of “insured services” as defined in the CHA is thus part of this historical framework. According to the definitions found in Section 2 of the CHA, insured health services are limited to hospital services and those provided by a physician, whether in a hospital or elsewhere, and to surgical-dental services provided in a hospital.
Moreover, the condition of comprehensiveness set out in Section 9 of the CHA distinguishes between physicians and “other health care practitioners,” stating that the services of the latter should be insured “where permitted the law of the province so permits.” This interpretation is confirmed by Health Canada’s website.
Are there any credible options that would allow Holland to achieve his objectives?
The definition of insured services in the CHA is somewhat technology-neutral, in that it neither requires nor excludes any particular method of delivery, whether face-to-face or remote. Therefore, if we assume that virtual care is a delivery method designed to increase accessibility, it is not unreasonable to assert that the provinces and territories must make it available within their public system, in accordance with the conditions set out in the CHA. In principle, this should only apply to teleconsultations that are comparable to hospital or medical services.
It therefore seems doubtful that the minister could extend this requirement to services provided by specialized nurse practitioners or other non-physician professionals, especially when those services are offered independently, outside hospitals. To achieve this, the concepts of “physician services” and “hospital services” would have to be stretched to give them a meaning they never had.
An example of a haphazard interpretation would be to consider that specialized nurse practitioners correspond to the definition of physician under the CHA because they are now authorized to perform acts that are also performed by physicians.
If this approach was chosen, what would be the impact on other health professionals – pharmacists, psychologists, physiotherapists, nutritionists, etc. – whose scope of practice has also evolved considerably in recent years, so that they also offer services that correspond to medical services? Extending the application of the CHA to all these professionals would obviously have serious budgetary consequences for provinces. It would be hard to justify that a simple ministerial letter could lead to such a result.
It would be more reasonable to consider that when provided in direct relation to hospital services (in anticipation of or following an episode of acute care, for example), or with medical services (by the staff of a medical clinic, at the request of a doctor, for example), virtual care provided by non-physicians would then be integrated into hospital or medical services.
The portability condition of the CHA could perhaps also justify a requirement for coverage of insured services rendered in virtual mode on an interprovincial basis – although this condition was primarily designed for patients who move to another province or who are there temporarily.
Such clarification would not prevent the provision of private virtual care, delivered independently by a SNP (or any other non-physician professional), at the expense of a patient or a group insurance plan, outside a hospital setting.
An inconsistent approach
Another weakness of the approach envisaged by Holland is that the CHA does not prohibit private services, a point made by the Supreme Court of Canada in the Chaoulli case. Moreover, unlike most provincial legislation, the CHA does not prohibit duplicate private insurance plans, i.e. plans that cover health services that are also covered by public plans.
The main purpose of the CHA is to ensure that provincial public plans meet the conditions it sets out, including universality and accessibility. When patients have no choice but to turn to private care, the province is exposed to a reduction in federal transfers.
The Canada Health Act does not prohibit private care
It is therefore astonishing that the minister should show such concern about virtual care, while remaining silent in the face of a unique and well-documented situation in Quebec, namely the growing number of doctors who decide to practice completely outside the public system. These “non-participating” doctors bill their patients directly, and the patients cannot be reimbursed by the public system. Twenty years ago, this phenomenon was marginal. Today, more than 500 family doctors in Quebec practice outside the public system. That’s 4.8 per cent of them. The phenomenon is also present among specialists: around 270 of them practice outside the public system, or 2.3 per cent.
The issues surrounding virtual care are certainly important, but the increase in the number of non-participating doctors is just as worrying, if not more so, in terms of the principles of universality and accessibility. The very capacity of the public system to provide care to the population is threatened. And there is no doubt that these are insured services within the meaning of the CHA. Yet Ottawa remains silent.
Towards a “real” modernisation of the CHA?
In strictly legal terms, Canada’s health minister has little room for manoeuvre when it comes to interpreting the CHA with regard to virtual care. Politically, this may encourage provinces to increase access to virtual care, but nothing is certain. Some provinces may decide to follow Quebec’s lead in the case of diagnostic services and ignore the CHA and the ministerial interpretation. This could be the case if there are no consequences, or if they consider that it would be less costly to absorb the reduction in federal transfers than to cover the services in question. Provinces or third parties favourable to the development of private health services could also challenge the new interpretation, as in the Chaoulli and Cambie cases.
Pending the forthcoming ministerial letter, it may be, as the Romanow Commission recommended more than twenty years ago, that a new Canada Health Act might be needed to deal with the current issues of access to care, and not just a new interpretation, which would be limited in scope.
This article first appeared on Policy Options and is republished here under a Creative Commons license.
