On December 12, 2017, Bill 160 passed third reading and received Royal Assent. Included in Bill 160 is the Health Sector Payment Transparency Act (the “Act”). This Act will come into force at a later date to be determined by the government.
The stated purpose of the Act is to require the reporting of information about financial relationships in the Ontario healthcare system. It enables the collection, analysis and publication of that information in order to increase transparency, provide patients with information that may assist in making healthcare decisions, and provide information for research, evaluation, planning and policy analysis. The Act provides for broad reporting obligations, and many details (discussed further below) are left to be prescribed by regulation, copies of which are not yet available.
As we reported, Bill 160 was introduced on September 27, 2017. As we also reported, it was referred to committee where consultation occurred. The only change made to the Act since it was introduced is a change to the definition of “personal information” which now excludes personal health information. The Act provides that the Minister may collect personal information, which now excludes personal health information as defined in the Personal Health Information Protection Act.
Summary of the Act
The Act provides for the reporting of transfers of value.
What must be reported?
Any transfer of value provided directly or indirectly by a “payor” to a “recipient” must be reported to the Minister unless the transfer is exempt by regulations, due to a low dollar value or otherwise. If required by the Minister, intermediaries or affiliates involved in the transaction may also be required to report transfers.
Who is a Payor?
Payor is defined as any person who provides a transfer of value to a recipient and is:
- a manufacturer selling a medical product (drug, device, or any other prescribed product) whether under its own name or a name or mark that is owned or controlled by it;
- a person who fabricates, produces, processes, assembles, packages, or labels a medical product on behalf of a manufacturer;
- a wholesaler, distributor, importer, or broker of a medical product;
- a marketing firm or person who markets or promotes a medical product;
- a person who organizes continuing education on behalf of a manufacturer; or
- a person otherwise prescribed in regulation.
Who is a Recipient?
A recipient is a person, prescribed by regulation, who receives a transfer of value. As we noted above, regulations are not yet available and the types of persons who will be considered recipients remains unknown.
What information must be reported?
The following information must be reported:
- the name and address of each party to the transaction (party includes the payor, the recipient, and any intermediary);
- the source of the transfer if it is reported by an intermediary or affiliate;
- the date of the transfer;
- the dollar value or, in the case of non-monetary transfers, the approximate dollar value;
- a description of the transfer including the reason for it; and
- any other prescribed information.
The payor is responsible for collecting any necessary information from the recipient in order to report to the Minister.
How must transfers of value be reported?
This has yet to be announced. The frequency and method of reporting are to be prescribed by regulation, and records must be kept for a length of time to be prescribed by regulation.
What will the Government do with the Information?
The Act provides that the Minister shall disclose the information (including personal information) on a website, analyse the information and, if appropriate, publish the result of any analysis.
How will it be Enforced?
The Act provides for enforcement and offences including considerable inspection powers that would allow inspectors to enter premises without a warrant at any reasonable time should they believe that a record relating to a transaction may be located there in order to determine compliance.
If the Minister or an inspector has grounds to believe that a person has failed to comply with the Act or regulations, they may serve a compliance order requiring the person to take actions in order to comply with the legislation. A person served with a compliance order has 14 days to make submissions, otherwise they must comply with the order. If no submissions are made within 14 days or the Minister confirms the order following review of submissions, the name of the person and a description of non-compliance will be published on a website.
What else does the Act cover?
The Act also provides details as to the ability to correct information and notice requirements pursuant to the Freedom of Information and Protection of Privacy Act.
