Ontario patients may soon learn how much some of the province’s highest billing doctors receive in taxpayer-funded OHIP payments.

If the Ontario Medical Association follows through on a proposal from some of its members, it would assist in publicly releasing the names of some top-billers, a move that would mark a dramatic reversal in its position that such disclosure would be a violation of personal privacy.

Doctors have been discussing the plan for more than a week on a social media site, the Star has learned.

Proponents say they are likely to lose a two-plus year court battle against the Star and the Ontario privacy commissioner to keep the names secret. They say they could “minimize the damage” by abruptly ending their legal fight and publicly releasing the names themselves.

Read more:What MDs are saying about the proposal to name some top billers

Under the scheme, doctors would pre-emptively leak the names not to the Star, but to another news media outlet in a bid to obtain more favourable coverage than the proponents believe they might receive from the Star.

“Definitely open to the idea. Better for us to control the message,” OMA president Dr. Shawn Whatley wrote Aug. 5 on the Ontario Doctors Discussion Forum, a Facebook group with more than 10,400 members.

“We are discussing it this week,” he wrote in response to a request for the OMA get involved in the scheme.

But when the Star subsequently asked Whatley for an on-the-record comment about the strategy, his public relations office released a statement, indicating the organization is not acting on it:

“The matter regarding physician billings disclosure is still before the courts. We are pursuing leave to appeal. We continue to update members on court proceedings; any further strategy would need to go through a consultation with our members. The OMA is not actively consulting with our membership regarding the release of their billings prior to a court ruling.”

The Facebook forum is a vehicle for doctors — “as individuals” — to express frustrations and share ideas, the statement said. “There is a distinction between our own personal comments and the work of the OMA.”

Ontario lags behind other jurisdictions in making physician-identified billings public. British Columbia, Manitoba and New Brunswick proactively release the information annually. So does the United States. Newfoundland and P.E.I. are currently tackling the issue.

The damage-control strategy was pitched on the site on an account credited to Baseer Khan, who is a Vaughan ophthalmologist. He warned that the court battle — launched by the OMA as well as two other physician groups — is doomed and urged that doctors take control of how the names of top billers are made public. Describing himself as a top-100 biller, Khan wrote:

“Full disclosure — I am one of these individuals. I’ve spoken to a number of individuals in and out of our profession and I am of the strong opinion that the appeal from the OMA will be turned down and our names will be published.

“Invariably, the story will be played out negatively in the press and media — however IF we control the narrative, we can minimize the damage.”

Khan did not respond to numerous requests from the Star for an interview.

Physicians on the forum responded favourably to his idea.

“It’s a solid plan. Scoop the Star’s story. They spent a fortune fighting for this. Lick their lollipop before they have a chance to enjoy it,” wrote Toronto radiologist Dr. David Jacobs, vice-president of the Ontario Association of Radiologists.

Jacobs wrote on the forum that he had no intention of responding to a request from the Star for an interview.

In June, a three-judge panel of the Ontario Divisional Court ruled unanimously against the doctors in their bid to keep the names secret. The court ordered the doctors to pay the Star $50,000 in legal costs.

The following month, the doctors announced plans to continue their legal fight. They filed a notice of application for leave to appeal to the Ontario Court of Appeal.

A court order preventing to Star from getting access to the names — which had been sought and obtained by the doctors — was extended so they could pursue their appeal.

On the Facebook forum, Khan urged that the highest paid doctors “voluntarily disclose our Billings . . . to a more balanced paper like the globe or sun.” He also suggested they disclose the number of services and visits rendered, taxes paid, cost of overhead and expenses and final net income.

Khan proposed that the OMA, which represents all of the province’s 29,000 practising physicians, get directly involved in the scheme, with the aim of portraying top billers in the best light:

“If enough of us agree, we can petition the OMA PR group to package this info and present it the best way possible.”

Explaining his logic: “We are going to lose this appeal anyways — if we withdraw the appeal and disclose then we . . . take the wind out of the star and (reporter Theresa Boyle’s) sails (and) stop look like we’re hiding things and playing into the characterization that we’re fraudulent — rather that we work our asses off.”

Khan suggested that doctors move quickly on the idea: “The summer is the best time to do this (because) people are thinking about different things . . . The bigger time spread we can created (sic) between this new story and negotiations — the better.”

A new round of negotiations between the OMA and province for a new fee contract is set to start next month. Doctors have been without a contract for more than three years.

Efforts to reach a deal have been acrimonious with one of the biggest stumbling blocks being how to address the significant disparities between what different classes of medical specialties receive in OHIP fee-for-service payments.

The Star’s efforts to make physician-identified payment data public began in 2014 with a Freedom-of-Information request to Ontario’s Health Ministry. The Star asked for the names, medical specialties and payment totals of the 100 top-billing doctors for the five most recent years available.

Payments to physicians are not the same as income as they do not take into account expenses for office rent, staff salaries and supplies.

The ministry provided information about medical specialties and payments, but denied access to names, reasoning the release would be an unjustified invasion of privacy. (The information provided showed ophthalmologists were the biggest billers, followed by diagnostic radiologists and then cardiologists.)

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The Star successfully appealed that decision to Ontario’s Information and Privacy Commissioner (IPC).

The three doctors’ groups then sought to get the IPC decision quashed through a judicial review.

In June’s ruling against the doctors, the Divisional Court rejected their argument that the Star had failed to establish a proper rationale for disclosure. Their argument ignored the well-established rationale that underlies access-to-information legislation, the court said.

“The rationale is that the public is entitled to information in the possession of their governments so that the public may, among other things, hold their governments accountable,” the decision stated.

The OMA announced the following month that it would try to get the decision overturned at the Ontario Court of Appeal. An email to members said:

“The (OMA) board continues to strongly disagree with the IPC adjudicator’s ruling that physician payment information is not personal information protected from disclosure. The board overwhelmingly decided that we must stand our ground and exhaust every possible avenue to fight for our members on this matter.”

Khan asked Whatley on the forum if the OMA could help stickhandle the plan by getting the top billers to work with the organization on it.

“Shawn: others on the list may not want to disclose their identity to me or anyone other (sic) doc, are you willing/able to assign someone at the OMA to compile a list of docs who are willing to do this?”

Whatley responded that the OMA would consider the idea.

Someone posting on the Facebook forum under the name “Rox Lab” wrote that the OMA’s public relations team already had the issue on its radar and urged any top billers interested in participating in a PR response to get in contact:

“OMA PR wanted to do a human interest piece on these doctors showing what services they provide. If you are interested to do this individually email the communications team.”

Rox Lab declined to respond to queries from the Star and advised a reporter to get in touch with the OMA for comment.

One of the main concerns doctors have expressed about disclosure of billings is that the public might not appreciate the distinction between OHIP payments and actual income.

“It is important to remember that disclosure of billings without context does not provide the public with an adequate picture, and may lead to a misunderstanding of billings versus income,” Whatley said in his statement to the Star.

“Without an understanding of each individual physician’s overhead costs, in addition to hours worked, one cannot truly interpret the data. The comments made on the Facebook forum are an example of grassroots brainstorming to provide this context. At the OMA, we are always looking to highlight the benefits each physician brings to their community.”

Star lawyer Iris Fischer said the paper has continued to make the distinction between OHIP payments and overhead.

“The Star has been clear in its reporting on this issue that payments from OHIP are not doctors’ take-home pay — which was also the evidence before the IPC and important to the finding that payment information is not ‘personal’ to doctors,” she stated when the doctors announced plans to appeal.

In Fischer’s closing arguments during the judicial review, she said the public and media should have access to billing information so they can ask questions, identify anomalies and confirm appropriateness.

“How many people is that doctor billing on behalf of? What is the size of his or her practice? What are the possible implications of billing (for working) 366 days a year?” Fischer asked, referring to a finding in last year's provincial auditor's report.

“Maybe the real reason is a high-billing doctor is actually overworked in an underserviced area. It's a structural problem that needs to be addressed by the ministry,” she said.

The provincial auditor’s report raised the issue of “problematic” billing, stating that nine specialists claimed they worked more than 360 days in the 2015/16 fiscal year. They included six doctors who billed OHIP for work they said they did on 366 days during the 2015/16 fiscal year (which had an extra day because 2016 was a leap year).

The report cited the case of an ophthalmologist who billed $6.6 million in 2014/15 and had previously been described by Health Minister Eric Hoskins as the province’s highest biller.

A Health Ministry audit of the 12 top billers, obtained by the Star last year through a separate Freedom-of-Information request, suggested they are overcharging OHIP.

Among “concerns” highlighted in the audit were: billing for “services not rendered,” upcoding or charging OHIP using fee codes for more expensive procedures; and charging for “medically unnecessary” services that the plan is not designed to fund.

In urging doctors to drop their appeal, Khan wrote on the forum that it would “allow OMA resources to be spent fighting fights ALL of us need such a corporation issues and negotiations.”

And it would “build good will (sic) with other docs in the province who don’t benefit from this fight,” he continued.