Ontario doctors are operating under a flawed oversight system that critics say does little to monitor billings despite a hard-hitting auditor’s report that raised numerous red flags.

Three years after auditor general Bonnie Lysyk described the province’s oversight system for physician billings as “weak,” most of her recommended fixes to prevent abuse have not been implemented.

The Ministry of Health has fully implemented only a handful of Lysyk’s 14 recommendations. The ministry told the Star in May it is working to make the billing system “more appropriate and transparent,” but did not provide further details.

The auditor general conducted an audit of the physician billings system in 2016 that made a number of recommendations to strengthen oversight. In her December 2018 followup report, Lysyk found the ministry had made no progress on major recommendations including: finding out physicians’ operating costs; had not re-established its program of having inspectors analyze doctors’ records on-site and interview them about their billings; and had not come up with an “effective mechanism” to recover overpayments.

Lysyk called the current mechanism to recover overpayments “ineffective, lengthy and resource-intensive,” and said it was hindering the government’s ability to get more money back from doctors. Under the current system, the government has to make an application to an independent board to order a physician to repay if they don’t do so voluntarily. The task of disciplining doctors for alleged improper billing falls to their self-regulating body, the College of Physicians and Surgeons of Ontario (CPSO).

“In addition to lacking complete information on physicians’ profit margin, the ministry also lacks data on whether physicians work part-time or full-time, the size and scale of their practices, and individual physicians’ hospital versus community practice,” Lysyk wrote. “As a result, the ministry cannot assess whether the differences in payment within specialties are reasonable.”

The physician billings system is at the heart of a Toronto Star project seeking transparency on how tax dollars are spent in a cash-strapped health system. After a five-year battle, the Star obtained through a freedom-of-information request the names of the Top 100 highest-billing doctors going back to 2011 and is publishing a series of stories exploring Ontario’s $12-billion physician billing system.

Over the years since 2011, the doctors on the list have billed anywhere from a high of $6.9 million to $1.4 million on the bottom end. Billings are not the same thing as take-home pay, however, as doctors also use money from their billings to pay for things like rent, staff and equipment.

There are three major billing models, with the “fee-for-service” model being the main way physicians have billed the province since 1972, according to Lysyk’s report, and is widely used by specialists. It entails physicians billing the government a fee for each service they perform, using fee codes set out in OHIP’s schedule of benefits. Each service, along with the fee, is assigned a fee code.

The government paid doctors $6.7 billion in the 2017-18 fiscal year through the fee-for-service model, according to the Ministry of Health.

A few of the top-billing physicians in the data obtained by the Star, all of whom use the fee-for-service model, have been caught in legal or regulatory crosshairs for problematic billings.

Notable cases include that of Dr. Essam Michael, who runs a number of fertility clinics in the GTA, and who billed about $1.9 million in 2017, coming in at number 44 on the list of the Top 100 highest-billing physicians for that year. Michael has appeared on the list since at least 2011, when he ranked at number three, having billed $4.2 million.

In November 2018, he pleaded guilty in court under the Health Insurance Act to submitting billings to OHIP “that did not comply with the requirements of the schedule of benefits.” The offence is non-criminal, and along with his plea, Michael repaid $545,000 and was also ordered to pay a fine of $5,000. At the same time, the judge entered a finding of not guilty on a criminal charge of fraud.

Michael’s lawyer, Brian Greenspan, described him as a “dedicated physician” in an interview with the Star. What happened, Greenspan said, is that when Michael started an independent practice and was expanding, he inherited a billings software program that contained embedded mistakes regarding the proper fee code to be billed for a particular service. The mistake was eventually caught, Greenspan said, and Michael was ready to repay.

“The offence to which he pleads guilty under the Health Insurance Act is an unintentional lack of due diligence. It’s ‘the buck stops here,’ he’s responsible for proper billings,” Greenspan said, adding Michael has clerks who do the actual billings. “But it does not involve any dishonesty, deceit or any intentional wrongdoing.”

Another case of a top-billing doctor with suspected billing issues is that of Salim Daya, who also happens to specialize in fertility in the GTA. According to his profile on the CPSO website, Daya was being investigated by the college for matters including his OHIP claims.

As a result of the investigation, he signed an undertaking with the college in November 2018, in which he agreed to have a monitor supervise his practice for at least six months. The monitor would also perform “direct observation of a half day, once every month, to assess clinical ability and OHIP billing,” according to the undertaking, which does not outline further details about the OHIP claims.

Daya has appeared on the Top 100 list for five years since 2011, coming in at number 51 in the 2017-18 fiscal year, having billed about $1.8 million. He declined to comment when reached by the Star.

There are several organizations responsible for investigating doctors for suspected problematic billings. The Ministry of Health is one of them. According to a ministry spokesman, from 2011 to 2018 the ministry made 48 referrals regarding alleged improper billing to the CPSO, which has the power to discipline doctors, and 19 referrals to the Risk Management Fraud Control Unit, which was a unit within the ministry responsible for co-ordinating cases of suspected fraud and referring them to the Ontario Provincial Police. Those responsibilities were transferred to the government’s Payment Accountability and Fraud Control unit in 2017. All 19 referrals to the unit ended up being sent to the OPP, the ministry said.

Cases referred to the OPP for investigation that result in charges under the Criminal Code and Health Insurance Act are tracked by the ministry, said ministry spokeswoman Anna Miller. She said there were four cases that led to Criminal Code charges between 2011 and 2018 — three ended up with convictions and one a conviction under the Health Insurance Act (the Michael case).

There were also six referrals by the Ministry of Health to the Physician Payment Review Board, an independent body, which has the power to order a physician to make a repayment, ministry spokesman David Jensen said. (Some physicians may have been referred to more than one body.)

Created in 2010, the board has 27 members, who are mostly physicians — 11 recommended by the ministry and nine by the Ontario Medical Association, which represents the political and economic interests of the province’s doctors. The other seven members are public representatives. The board sided with the physician in the five cases the auditor general looked at as part of her audit.

As the auditor general noted, the Ministry of Health does not have the power to order a physician to make a repayment for a suspected improper billing. It must ask the Physician Payment Review Board. The auditor general said that in Alberta and British Columbia, the ministry can order a physician to repay without having to go to a board.

A Ministry of Health spokeswoman said cases are referred to the CPSO “when the ministry suspects issues regarding patient safety or physician standards of practice.” She said cases are sent to the fraud management unit and OPP when the ministry suspects fraud has been committed.

The CPSO, which is responsible for disciplining physicians, investigated 262 cases of alleged improper billings between 2013 and 2018, said spokesman Shae Greenfield. The Star had requested data beginning in 2011, but Greenfield said “prior to 2013, the data was categorized differently and, as a result, would require some time to manually review files in order to provide statistics for those historical cases.”

Of the 262 cases of alleged improper billing investigated between 2013 and 2018, Greenfield said, a total of 48 investigations involving 37 physicians were sent for 38 public discipline hearings (one physician has two cases). The hearings resulted in 29 physicians receiving findings of professional misconduct. Three resigned and promised not to reapply for a licence. Seven doctors are still awaiting a hearing or an outcome.

The rest of the cases, which were not sent to discipline hearings, resulted in a range of outcomes, including no further action taken, cautions and orders to take training courses.

Read more from Operation Transparency series:

They’re Ontario’s top-billing doctors, but for years their identities have been kept secret. Until now

Revealed: Ontario’s Top 10 highest-billing doctors

Loading... Loading... Loading... Loading... Loading... Loading...

How doctors get paid in Ontario

Amir Attaran, a professor in the health and law faculties at the University of Ottawa, said the government should be following the same approach in every case of alleged improper billing.

“Why are there more CPSO referrals than fraud referrals? Why are you not referring to all authorities all the time?” he told the Star. “Do they always do the same thing in each case? It should not be arbitrary. Do they always demand repayment? Do they always tell the CPSO? Do they always tell the police?”

Joan Brockman, a professor at Simon Fraser University who has studied fraud in the health profession, said it’s “shocking” that physician repayments are voluntary most of the time, rather than the government ordering them to repay.

“The other shocking thing is that usually that is all they have to do (pay it back) when they should probably be prosecuted in some of these cases for … OHIP fraud,” Brockman said. “Not only do they not pay it back, sometimes, if they pay it back, the government thinks that’s the solution.”

The Ministry of Health does appear to be making progress in recovering money from physicians. It recovered $820,200 in 2017-18 through proactive reviews, in which the ministry identifies “anomalous billers” through statistical analysis of billings. That was a huge increase compared to the $13,400 the ministry recovered in 2016-17.

“It is expected that recovery amounts fluctuate from year-to-year,” said ministry spokesman Jensen, when asked to explain the huge difference in the amount of money recovered between 2016-17 and 2017-18.

“The number of reviews initiated by the ministry varies each year, and individual reviews can also vary in length and complexity. Reviews often span over fiscal years and the amounts recovered by the ministry one year can be related to case work completed in previous years.”

The government also recovered $1,616,300 in 2017-18 through reactive reviews, which can be sparked by complaints from a patient or another health-care professional.

“There’s systemic aggressive billing that goes on,” medical malpractice lawyer Paul Harte told the Star. “My sense, is there is some significant fraud and that that fraud is not being chased down.”

The Ministry of Health told the Star in May that the government is proposing changes to make the billing system “more appropriate and transparent.”

“These changes will include ensuring OHIP only pays for appropriate, delivered services, while making it easier for the government to recover funds when there are incorrect billings to OHIP,” said ministry spokesman Jensen.

He said the ministry is “not currently able” to collect information on physicians’ operating costs as that would require legislative changes. That had been one of the recommendations in Lysyk’s report, in which she had noted that a physician’s OHIP billings go toward much more than just their own income, but are also used to pay for overhead expenses, equipment and supplies.

Jensen also confirmed that legislative amendments would be required to bring back the ministry’s inspector program. Until the program was scrapped in 2005, inspectors could review doctors’ files on-site, interview them and make observations about their practices, according to Lysyk’s report.

The scrapping of the inspector program came in the wake of a 2005 report on the audit process by retired Supreme Court of Canada Justice Peter Cory who had recommended that the auditing functions be the responsibility of a new body separate from the government and the College of Physicians and Surgeons. The recommendation was not implemented.

Cory had also recommended that the primary goal of this new audit system should be to “educate and assist physicians in complying with the billing requirements,” and that the second goal be to identify and eliminate fraudulent billing. He recommended that to make the audit system accountable, there should be a “biennial stakeholders’ forum” to receive reports on the audit process and to consider improvements.

Instead of what Cory recommended, the government introduced what are known as “medical advisers,” who can only review records off-site once received from the physician. This system has “limited the ministry’s ability to recover inappropriate payments,” the auditor general found.

The Ontario Medical Association told the Star it supports a “comprehensive implementation of the Cory recommendations” to strengthen the oversight system.

“The OMA views the current system as structurally appropriate, but agrees that the physician audit system in Ontario could be enhanced through proper resource allocation, bilateral work between the Ministry and the OMA,” president Dr. Sohail Gandhi told the Star in an email.

Gandhi said the OMA provides training and resources to physicians on an ongoing basis on how to submit OHIP claims that accurately reflect the services provided, including holding several billing seminars every year for primary care doctors, which are also livestreamed.

“The OMA does not support inappropriate or unnecessary testing or services by physicians,” Gandhi said. “This does not help patients, plus it diverts resources that could better be used elsewhere.”

NDP health critic France Gélinas said the government should already be drafting legislation to strengthen oversight if required, although she questions whether it’s necessary.

“When the inspector program got scaled back, sure it was 14 years ago, but I don’t remember us taking legislation away,” she said. “And getting a better picture of how much doctors pay in rent, overhead and staff, really you don’t need legislation to do this, you could task anybody within the ministry to find that out.

“The health-care system works on trust,” Gélinas added. “There is enough mistrust because of the huge amount of money that we’re talking about, because some physicians have such high billings. A little bit of sunshine, a little bit of transparency, would go a long way to restoring that trust, and our health care system would be way better for it.”

One in a series of stories.