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September 26, 2014
Hon. Terry Lake
Minister of Health
Room 337, Parliament Buildings
Victoria, BC V8V 1X4
Hon. Suzanne Anton
Attorney General and Minister of Justice
Room 232, Parliament Buildings
Victoria, BC V8V 1X4
Tom Vincent, Chair
Medical Services Commission
1515 Blanshard Street
PO Box 9652 STN PROV GOV
Victoria, BC V8W 3C8
Dear Minister, Attorney General, and Medical Services Commission Chair,
The BC Health Coalition and Canadian Doctors for Medicare welcome the possible resolution of the charter challenge to B.C.'s Medicare Protection Act by a group of plaintiffs led by Dr. Brian Day: Cambie Surgeries Corporation (CSC), Specialist Referral Clinic Inc. (SRC), and five individuals.
As interveners in the challenge, we were pleased with the strong defence that the BC government prepared for the trial.
We look forward to a speedy resolution that upholds public health care law and ensures full and immediate compliance by these clinics, and all physicians practicing there, with BC's Medicare Protection Act (MPA).
It is also of the utmost importance that British Columbians be assured that there are real and significant consequences for the past unlawful activities of those involved.
As you know, it is now more than two years since the release of an audit of CSC and SRC carried out by the Medical Services Commission (MSC).
Key findings of the audit were:
- extra-billing occurred at both SRC and CSC on a frequent and recurring basis, contrary to the Act;
- the extra billing often overlapped with physician claims to the Medical Services Plan;
- charges to beneficiaries for benefits rendered at SRC or CSC by opted out, but still enrolled, physicians unlawfully exceeded the value of what the beneficiary could claim from MSP, where the MSC could determine such MSP values.
In other words, not only were patients unlawfully charged for insured health care services at CSC and SRC, but physicians in the clinics were doing so with the benefit of a very substantial public subsidy by submitting claims to, and receiving payments from the Medical Services Plan for services that "overlap" with those for which patients have paid privately.
Moreover, it is clear that substantial sums of money are involved. In spite of the very limited sample gathered by the auditors (largely comprised of services delivered over a period of less than 30 days) , the audit found that, in this short period alone, $491,654 in extra billing took place, with overlapping claims being made to the MSP for at least another $66,734. The cost to patients and MSP for the years this unlawful behaviour has continued has yet to be calculated. If the 2012 audit results are indeed representative of the regular practices of these clinics, then costs to patients and taxpayers are surely in the millions of dollars.
The audit clearly demonstrated that billing at CSC and SRC breached s.17(1) and s.18(3) of the Medicare Protection Act. Yet these unlawful practices continue to this day.
If those harmed by Dr. Day's clinics are to be treated fairly, and if others are to be deterred from breaking the law, the BC government must hold the clinics accountable for these violations. At minimum, the BC government should do so by:
- Requiring restitution to patients for the cost of services for which they were unlawfully billed at CSC and SRC.
- Conducting a full audit of the CSC and SRC (extending beyond the original period reviewed by the Medical Services Commission), and making that audit publicly available.
The 2012 Audit repeatedly referred to non-cooperation by the principals of the CSC and SRC who denied auditors access to the books and accounting records which they required for the audit. In light of the serious findings of endemic and unlawful billing at the CSC and SRC, we believe that the Commission must complete a full and comprehensive audit, and conduct audits of a wider period of time, so that those responsible may be held to account.
Auditing should cover the period from 2001-present, starting when patient complaints of extra billing were first made against CSC and SRC. Failing that, at a minimum, a comprehensive audit should be conducted from the time of the patient interveners' 2008 legal petition to present.
- Requiring a commitment from Dr. Day and all physicians operating at his clinics assuring strict compliance with the MPA.
- Instituting a permanent injunction restraining CSC and SRC from contravening the Act (as sought by the Medical Services Commission's counterclaim).
- Referring the cases of practitioners who have engaged in unlawful billing to appropriate disciplinary bodies.
- Requiring the practitioners, owners of the facility, or representatives of the corporations, to reimburse the Medical Services Commission for the cost of the audit; to pay the full costs of the law suit, including those of the public interest and patient interveners, to pay a surcharge on fees improperly billed, and to reimburse the province for the amount of any reduction in federal transfers to the Province made in relation to the extra billing and user charges levied by the CSC and SRC or those practicing there.
- Instituting a permanent injunction to restrain CSC and SRC from requiring beneficiaries to execute Acknowledgement Forms, such as is sought in the Auditor General's Counterclaim, which also sought a declaration that these forms are void and unenforceable as being unconscionable, oppressive, unlawful, and inconsistent with public policy.
Finally, we urge the Medical Services Commission to proactively use its monitoring and enforcement role to ensure future compliance with public health care law in all of B.C.'s private clinics.
Our hope is to see this case resolved and appropriate accountability and transparency achieved at CSC and SRC, so that health care providers, patients, and all levels of government can move forward to create better public health care for all in B.C.
Edith MacHattie and Rick Turner, BC Health Coalition co-chairs
Dr. Monika Dutt, Canadian Doctors for Medicare chair
CC: Hon. Christy Clark, Premier
Hon. John Horgan, Opposition Leader
Hon. Judy Darcy, Opposition spokesperson for Health
Hon. Mike Farnworth, Opposition spokesperson for Justice