DR. RAJNIKANT PATEL APPELLANT - v. –, 2022 SKKB 245

KING ’S BENCH FOR SASKATCHEWAN 2022 SKKB 245 Date: 2022 11 10 Docket: QBG-RG-01932-2020 Judicial Centre: Regina BETWEEN: DR. RAJNIKANT PATEL APPELLANT - and – THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE AND MINISTER OF HEALTH (SASKATCHEWAN) RESPONDENT Counsel: David E. Thera, K.C. and Richika J. Bodani for the appellant Johnna M. Van Parys and Alexa E. LaPlante for the respondent DECISION ROBERTSON J. November 10, 2022 Contents Para. Nos.

INTRODUCTION....................................................................................... 1 BACKGROUND............................................................................................................ 2-5 ISSUES.............................................................................................................................. 6 ANALYSIS........................................................................................................................ 7 The Saskatchewan Medical Care Insurance Act ............................................................ 8 Statutory scheme..................................................................................................... 9-29 Should the affidavit of Dr.

Patel be added to the record?........................................ 30-35 Standard of review.................................................................................................... 36-37 Onus on appeal................................................................................................................ 38

Did the Committee err in its decision?........................................................................... 39 Bias............................................................................................................................. 40-54 Reverse Onus.............................................................................................................. 55-60 Frequency of Patient Attendance and Use of Extrapolation.......................................... 61-94 Inadequate Documentation........................................................................................ 95-102 Additional Amount of $50,000.................................................................................. 103-109 Conclusion..................................................................................................................... 110 Costs....................................................................................................................... 111-113 INTRODUCTION [ 1 ] This decision addresses an application and appeal by the appellant, Dr.

Rajnikant Patel [Dr. Patel], against the decision of the respondent, Minister of Health for Saskatchewan [Minister], to seek reimbursement of payments following a decision of the respondent, The Joint Medical Professional Review Committee [Committee], dated October 20, 2020 [Final Order]. For the following reasons, the application to supplement the record is granted in part and the appeal is dismissed. BACKGROUND [ 2 ] The following chronology summarizes some events leading to this appeal.

The events are taken from the court file, in particular the affidavit of David Guerrero, Director of Professional Review with the Minister, sworn February 23, 2021 [Guerrero affidavit]. The Guerrero affidavit forms the record [Record], as supplemented by part of the affidavit of Dr. Patel sworn October 6, 2022 [Patel affidavit]. Date Event 2018 June 25 Notice to Dr. Patel of review of billings for period December 18 to March 11, 2018 August 16 Dr. Patel provides requested documentation to Committee 2019 March 5 Committee reports concerns about Dr.

Patel to College of Physicians and Surgeons [College] July 10 Committee invites Dr. Patel to interview August 13 Dr. Butt joins Committee as temporary member November 25 Dr. Butt replaced by Dr. Fern 2020 January 22 Dr. Patel and his counsel attend interview with Committee April 22 Committee provides Proposed Order to Dr. Patel June 3 Dr. Patel provides written response to Proposed Order, including report of Dr. Bordman October 20 Committee issues Final Order November 18 Dr. Patel files Notice of Appeal 2022 October 7 Dr.

Patel affidavit filed, seeking to add to the record for appeal October 21 Court hears appeal [ 3 ] Dr. Patel’s notice of appeal stated the following grounds: 1) That the JMPRC failed to observe the principles of Natural Justice in the following respects: a. The JMPRC demonstrated bias, by reaching and reporting conclusions about the issues involved in its review based on incomplete information, before the hearing and without giving Dr. Patel a meaningful opportunity to respond; b. The JMPRC failed to consider the Appellant’s submissions with respect to the issues under review, or alternatively, failed to provide

adequate reasons for rejecting those submissions; c. The JMPRC failed to consider the Appellant’s expert opinion, with respect to the issues under review, or alternatively, failed to provide adequate or any reasons for rejecting that opinion. d. The JMPRC failed to give the Appellant notice of the opinions of the “temporary member” and an opportunity to respond to them. e.

The JMPRC placed the onus on the Appellant to prove that his patterns of practice were not inappropriate and that all his services during the period under review met the criteria for the various billing codes. 2) That the JMPRC exceeded its jurisdiction in the following respects: a. The inquiry and Order with respect to quality of documentation were beyond JMPRC’s jurisdiction; b. The inquiry and Order with respect to frequency of assessments and urine collections were beyond the JMPRC’s jurisdiction; c.

In the alternative, the JMPRC imposed a reassessment for documentation and frequency which was punitive in nature; d. The JMPRC imposed a additional amount penalty which exceeded the JMPRC’s jurisdiction and was punitive in nature. 3) The JMPRC failed to consider relevant evidence, and in addition or in the alternative the Order was unreasonable and the evidence did not reasonably support the Order in the following respects; a. The cases selected for review were not random and did not justify the generalizations and conclusions drawn by the JMPRC; b.

The samples of documentation reviewed were not a representative sample of the overall quality of the Appellant’s documentation and did not justify the generalizations or conclusions drawn, or the extent of those generalizations and conclusions; c. The JMPRC applied an unreasonable and unduly restrictive

interpretation of the billing codes for the services under review; d. The reassessments based on frequency and documentation were unreasonable and not supported by the evidence; e. The JMPRC unreasonably imposed arbitrary frequency, standard of care and record keeping requirements; f. The JMPRC relied on statistics that were not representative of the Appellant’s type of practice in order to justify its reassessments. g. The JMPRC rejected the Appellant’s explanations regarding frequency and management of patients; and h.

The evidence before the JMPRC did not support the percentages applied in reassessment. 4) The JMPRC erred in applying the additional amount of $50,000.00 as a penalty to the award and in concluding that Dr.

Patel was guilty of recidivism without any reasonable or proper analysis. 5) The JMPRC erred in recovering a portion of the Appellant’s assessments as a result of frequency. 6) The JMPRC applied an arbitrary and unsupported standard with respect to adequacy and quality of documentation. 7) The JMPRC erred in its application of statistics in establishing the percentage of reassessment applied to the Appellant. 8) Such further and other grounds as Counsel may advise and this Honourable Court may allow. [ 4 ] Dr.

Patel in his written submissions dated October 11, 2022 at para. 1 summarized the grounds of appeal as follows: (

a) The JMPRC demonstrated bias by making conclusions about Dr. Patel’s practice prior to interviewing him, and then inappropriately limiting Dr. Patel’s ability to provide evidence to contradict those conclusions, and inappropriately dismissing any evidence he and a qualified expert provided. (

b) The JMPRC erred in applying arbitrary percentages to each reassessment, without providing any explanation or rationale for applying said percentages. Furthermore, the Committee erred by inappropriately extrapolating the reassessment to patients and profiles that were not represented in the JMPRC’s review. (

c) The JMPRC erred in applying a cap on the number of methadone services Dr. Patel was permitted to provide during the period under review, specifically where the cap would lead to contravention of the Standards and Guidelines imposed by the College of Physicians and Surgeons of Saskatchewan for management of methadone patients. (

d) The JMPRC erred in reassessing Dr. Patel for documentation in both the “frequency” category and in the “documentation category” (

e) The JMPRC erred in reassessing Dr. Patel’s 5B services for medication management, when the identical conclusions were drawn to reassess Dr. Patel for management of fax refills. (

f) The JMPRC erred in reassessing Dr. Patel’s documentation by applying standards where they were not permitted to assess the quality of documentation; and (

g) Finally, the JMPRC imposed a penalty on Dr. Patel for failing to abide by their previous recommendations, despite the fact that Dr. Patel appealed their previous recommendations.

[ 5 ] Dr. Patel in his civil chambers appearance memo dated October 19, 2022 summarized the “Appeal Issues” as follows: Dr. Rajnikant Patel appeals the Final Order of the Joint Medical Professional Committee (“JMPRC”) dated October 20, 2020. This appeal is largely based on the following grounds: (

a) Extrapolations - No reasons or explanation were provided to justify the percentage of reassessment applied by the Committee. It is submitted that significant errors were made in the extrapolation, specifically in the reassessment for patients who the Committee suggests were seen too frequently. The Committee’s Final Order has the effect of reassessing services provided to patients that were seen rarely during the period under review. (

b) Failure to Consider Relevant Contextual Evidence - The Committee failed to consider a significant amount of evidence supplementing the statistical profile. This evidence included the recommendations and requirements set out in the Standards and Guidelines imposed by the College of Physicians and Surgeons of Saskatchewan, as well as the opinion of an objective expert. The Committee further failed to consider the explanations of Dr. Patel, which provided relevant contextual evidence regarding his pattern of practice. The Committee failed to provide sufficient explanations to justify its assessment of evidence of findings. (

c) Apprehension of Bias – The Committee reached its final conclusion based on its initial assessment of Dr. Patel’s statistical profile, and review of limited evidence. The Committee was aided in coming to these conclusions by an individual who was later disqualified from the Committee due to an apprehension of bias. The Committee’s consideration of evidence appears to have been guided by these conclusions, with a refusal to consider evidence to the contrary. (

d) The Additional Amount – The Committee imposed an additional amount inappropriately, without reasonable explanation. The Committee appears to have imposed the additional amount as a penalty for a previous appearance, which was appealed by Dr. Patel. ISSUES [ 6 ] The appeal raises five issues: 1. Should the affidavit of Dr. Patel sworn October 6, 2022 be added to the record? 2. What is the standard of review on appeal? 3. Did the Committee err in its decision? 4. If so, what remedy is appropriate? 5. Should an award of costs be made?

ANALYSIS [ 7 ] Before addressing these issues, I will review the legislation under which the appeal is brought and the statutory scheme for the review process which resulted in the decision under appeal. The Saskatchewan Medical Care Insurance Act [ 8 ] The appeal is brought under The Saskatchewan Medical Care Insurance Act , RSS 1978, c S-29 [ Act ] which in ss. 49 and 49.2 constitute the Committee and in s. 49.21 provides for an appeal from its decisions to this Court. Some of the relevant provisions are reproduced below: Director of Professional Review 49.1

(1) The minister shall appoint a person as the Director of Professional Review for the purposes of sections 49 to 49.91.

(2) In sections 49.1 to 49.9, “director” means the Director of Professional Review appointed pursuant to this section. Joint medical profession review committee 49.2

(1) In this

section and in sections 49.3 to 49.9, “committee” means the joint medical professional review committee established by

section 49.

(2) Where, in respect of insured services provided by a physician, it appears to the director that a physician has received or may receive from the minister or that a physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from a pattern of medical practice acceptable to the committee, he may refer the matter to the committee.

(3) Where the committee considers a matter referred to it pursuant to subsection (2) to warrant investigation by the committee, it shall serve the physician with written notice of its intention to investigate.

(4) A notice pursuant to subsection (3) is to be served personally or by registered mail sent to the address of the physician as shown on the ministry’s files, in which case it is deemed to have been received by the physician seven days after it was mailed.

(5) Where a matter has been referred to the committee pursuant to subsection (2), the committee may order that:

(

a) in the case of insured services for which payment has not been made by the minister, payment should not be made, or should be made at a reduced level, for all or any part of the services; (

b) in the case of insured services for which payment has been made by the minister, all or part of the amount paid by the minister should be recovered from the physician.

(6) Any order made pursuant to clause (5)(

b) is to be restricted to a period of not more than 19 consecutive months beginning not earlier than 25 months prior to the day the notice is served pursuant to subsection (3) and ending not later than that day.

(7) Where the committee makes an order pursuant to subsection (5), it may make a further order requiring the physician to pay to the minister an additional amount not exceeding $50,000.

(8) In determining whether an order should be made pursuant to subsection (5) or (7), the committee may take into account anything that it considers relevant, including a statistical or other comparison between the provision of insured services by the physician whose insured services are being considered and the provision of insured services by other physicians or groups of physicians, but it is not required to examine the provision of any individual insured service that has been provided by the physician.

(9) An order made pursuant to subsection (5) or (7) is to be served on the physician who is the subject of the order either personally or by registered mail to the address of the physician as shown on the ministry’s files, in which case it is deemed to have been received by the physician seven days after it was mailed, but failure to serve an order pursuant to this subsection does not affect its validity or its ability to be enforced.

(10) In making an order pursuant to this section, the committee shall observe the rules of natural justice. Appeal to judge 49.21

(1) Subject to subsection (2), a physician who is aggrieved by an order of the committee made pursuant to

section 49.2 may appeal to a judge of the Court of Queen’s Bench by serving the director with a notice of appeal and filing the notice of appeal with the local registrar of the court within 30 days after the day on which the order is served on the physician.

(2) The judge hearing the appeal shall consider only the record of the proceedings of the committee with respect to the order appealed from and the evidence presented at those proceedings and may make an order: (

a) affirming or varying the order appealed from; (

b) referring the matter back to the committee with directions to reconsider it; or (

c) quashing the order appealed from and substituting any order that the judge considers the committee ought to have made.

(3) The taking of an appeal under this

section stays the operation of the order appealed against pending the disposition of the appeal or other order of the judge.

(4) There is no appeal from the decision of a judge pursuant to this section. Statutory scheme [ 9 ] Under our public health system, patients do not pay directly for medical care and treatment. Most physicians (medical doctors) are in private practice and bill the government for payment of their services to patients.

Section 18 of the Act authorizes the Minister to make payment for the provision of insured services. “Insured services” is defined in s. 14 of the Act as “medically required services provided in Saskatchewan by a physician”. The amount paid for insured services is determined by the Physician Payment Schedules, pursuant to ss. 5(1) (

f) and 6(1) (

d) of The Saskatchewan Medical Care Insurance Payment Regulations, 1994 , RRS c S-29 Reg 19 . [ 10 ] In Colistro v Joint Medical Professional Review Committee , 2021 SKQB 62 at para 11 [ Colistro ], Bardai J. described the criteria for payment: [11] In practical terms, in order to be paid for a service: (

a) the treatment for which payment is sought must be medically required by the patient; (

b) the physician providing the service must have the qualifications to perform the service and provide the treatment; (

c) the treatment must be performed and/or supervised by the physician as required by the Schedule; (

d) the appropriate code in the

Schedule must be identified; and (

e) the assessment criteria contained in the

Schedule must be satisfied. [ 11 ] Payment of physician billing generally operates under an honour system. [ 12 ] The review process under the Act is designed to provide some control over public payment for medical services while affording procedural safeguards and fairness to the subject of the billing review. [ 13 ] The Minister does random audits of billing patterns. If a statistical deviation is found, it is referred to the Director of Professional Review [Director] appointed under s. 49.1 of the Act . In this case, an audit identified concerns with Dr. Patel’s billing

patterns. Dr. Patel had the highest billings amongst his group of family physicians (Final Order at page 4; Record at S652). [14] The Director may make a referral to the Committee if it appears that monies have been paid “by reason of any departurefrom a pattern of medical practice acceptable to the committee” (s. 49.2(2) of the Act). The Director, David Guerrero, made a referral tothe Committee in this case. To ensure objectivity in the initial review, the referral did not identify Dr.

Patel as the subject. [15] The Committee is composed of physicians appointed by the Minister, the College and the Saskatchewan MedicalAssociation, pursuant to s. 4(1) of The Medical Care Insurance Peer Review Regulations, RRS c S-29 Reg 18 [Regulations].

Section 5 of those Regulationsauthorize the Committee to also appoint “temporary members”. These temporary members may have additional experience in the subjectphysician’s specialized area of practice. The Committee therefore has institutional expertise and operates as a form of peer review. [16] The Committee has both an investigative and adjudicative function. Dr. Patel acknowledged this in his writtensubmissions at para. 33, describing it as a “unique process”: 33.

The JMPRC [Committee] has the authority to act as the investigator, prosecutor, as well as the judge in matters that come beforeit.” [17] In Malhotra v Joint Medical Professional Review Committee, 2022 SKQB 124 at para 28 [Malhotra], Crooks J.summarized the function of the committee on a review: [28] The function of the JMPRC is to assess whether a physician has departed from a pattern of acceptable medical billing practice.The JMPRC does not need to blindly accept that a service has been provided simply because it has been billed for.

In fact, to do so wouldbe to dispense with the need for the review function of the JMPRC.

Rather, they are guided by the practical aspects for payment assummarized in para. 11 of Colistro, which speak to medical necessity of the treatment, qualification of the physician, provision of thetreatment billed for, billing under the appropriate code, and satisfying the assessment criteria in the Payment Schedule. [18] In Colistro, at paras 12 – 13 and 66, Bardai J., described the role of the committee: [12] Where issues or concerns are raised with respect to a physician’s billing practices, s. 49.2 of the Act establishes the JMPRC todetermine whether the physician whose billings are at issue has departed from a pattern of acceptable medical billing practice. [13] The JMPRC derives its authority from s. 49 of the Act, which empowers the JMPRC to review billing patterns of physiciansand, in cases where they determine that monies have been paid by the Minister inappropriately, to order recovery from the physician.The JMPRC’s role is to determine whether a physician should be required to repay the Minister of Health because of overbilling,erroneous billing or because the services provided were unnecessary or excessive.

For the purposes of carrying out its duties, the JMPRCmay determine its own rules of practice and procedure and the manner in which it will conduct its affairs. The JMPRC is not required tocompare the physician’s billing practices with that of other doctors but may do so if they so choose. The JMPRC may consider anythingit considers relevant. It is given broad authority. This does not mean the JMPRC’s power is completely unfettered as the legislationexplicitly requires that the JMPRC observe the rules of natural justice. . . . [66] It needs to be noted that the role of the JMPRC is not to assess competence.

The questions that the JMPRC must answer are: isthe procedure medically required; does the physician have the qualifications to do the procedure; did the physician do the work andprovide the treatment; what is the applicable provision and code in the Schedule; and have the assessment criteria in the

Schedule beenmet? It is not the JMPRC's function to determine competence. In Huerto v Saskatchewan (Minister of Health) (1998), (SK KB), 170 Sask R 21 (QB) at para 54, the Court held: [54] ... The whole object of a review hearing pursuant to s. 49.2 is to determine if the billing aspect of the pattern of medical practice isacceptable to the Committee.

Section 49.2 is not concerned with the professional competence of a physician but with the billings of aphysician respecting insured services. ... [67] This view has been echoed in numerous cases since. See: Offiah [Offiah v Joint Medical Review Committee, 2011 SKQB227, 379 Sask R 186] at paras 64 and 72. Questions of competence are not within the mandate of the JMPRC. [19] The Committee’s review proceeds in stages and may be terminated at any stage, if the Committee is satisfied that theinitial concerns are not supported.

The review process was explained by the Committee Chairperson at the “interview”: see Guerreroaffidavit, Exhibit “KK” transcript [Transcript] at pages 5-9. [20] The first step is to decide whether to investigate the referral. If so, then a notice of investigation is sent to the subject ofthe review.

The next step, which may coincide with the notice of investigation, is to request documentation from the subject physician. [21] If, after review of submitted records (usually statistical billing profile and sample patient records) and explanation ofthe subject physician, the Committee remains unsatisfied, the subject physician is invited to attend an “interview”. This interview is aformal proceeding which is recorded: see Guerrero affidavit, Exhibit “KK” Transcript. [22] From my reading of the Transcript, this “interview” is less formal than a court proceeding, but still a structured hearing.Dr.

Patel appeared with his lawyer. He was allowed to make an opening statement: see Transcript at pages 10-36. Members of theCommittee then asked questions: see Transcript at pages 36-386. [23] From my reading of the Transcript, the “interview” was more of a dialogue than courtroom examination. During thecourse of Committee questioning, Dr. Patel’s lawyer intervened repeatedly, including to assist Dr. Patel and ask questions of both Dr.Patel and Committee members: see Transcript at pages 58-59,77-79, 90, 96, 99-101,11-113, 116, 118, 120-129, 134-137, 140-142, 146,

150, 159, 166, 170-171, 174, 179, 187, 191, 193, 196, 198, 203, 206, 208, 209-211, 218-219, 222-224, 229-231, 238, 244-245, 260, 266- 267, 272, 278, 282-283, 292, 295-297, 299, 304-306, 309, 315, 336-338, 353, 356, 362, 364, 366 and 385. Dr. Patel’s lawyer made a closing statement: see Transcript at pages 389-400. Dr. Patel also made a final statement: see Transcript at pages 400-406, after which the Committee Chairperson asked a final question: see Transcript at pages 407-408.

The Committee then ended the interview: see Transcript at page 409. [ 24 ] The next step is the issuance of a draft decision in the form of a “Proposed Decision” [Proposed Decision]. The subject physician may provide a written response to that draft, which is considered by the Committee before issuing its final decision in the form of a Final Order. [ 25 ] The Committee, in its covering letter dated October 20, 2020 attaching the Final Order, addressed Dr.

Patel’s submissions about the Proposed Decision. [ 26 ] This was the process followed in this case. [ 27 ] The Final Order dated October 20, 2020 is Exhibit “BB” to the Guerrero affidavit. Exhibit “BB” is 63 pages, however, that includes parts that appear to be appendices to the part providing reasons and decision, which is 37 pages. The Committee made the following orders, summarized at pages 36-39 of the Final Order (Record at S684-S685): 1. (

a) METHADONE PATIENTS : Because of an inappropriate pattern of practice associated with billing frequent, non-medically required partial assessments (5B), 85% of partial assessments greater than nine (9) per patient billed during the period under review will be covered by the Minister. (

b) NON-METHADONE PATIENTS : Because of an inappropriate pattern of practice associated with billing frequent, non-medically required partial assessments (5B), 20% of partial assessments billed during the period under review will be covered by the Minister. … 2. (

a) METHADONE PATIENTS : Because of an inappropriate pattern of practice associated with incomplete documentation of partial assessments (5B), 15% from each partial assessment billed during the period under review will be recovered by the Minister. This excludes any partial assessment reassessed under item 1(a). (

b) NON-METHADONE PATIENTS : Because of an inappropriate pattern of practice associated with incomplete documentation of partial assessments (5B), 15% from each partial assessment billed during the period under review will be covered by the Minister. This excludes any partial assessment reassessed under 1(b). 3. Because of an inappropriate pattern of practice associated with incomplete documentation of complete assessments (3B) in an office setting , 50% from each complete assessment billed in an office setting during the period under review will be recovered by the Minister. … 4.

Because of an inappropriate pattern of practice associated with consultations (9B), 50% of consultations billed during the period under review will be converted to partial assessment (5B) and recovered by the Minister. … 5. Because of an inappropriate pattern of practice associated with billing urine collection and referral of specimen (204A), 100% of urine collection and referral of specimen (204A) services billed during the period under review will be recovered by the Minister. … 6.

Because of an inappropriate pattern of practice associated with billing phone calls received from the pharmacy for prescription refills (794A), 75% of phone calls for prescription refills billed during the period under review will be recovered by the Minister. [ 28 ] The effect of these reassessments is to reduce the payment to Dr. Patel for the 15-month period by $396,596.20 from the $1,269,506.60 paid to $872,910.40. [ 29 ] The Committee also ordered that Dr. Patel pay an additional amount of $50,000 (Final Order at page 53; Record at S683). Should the affidavit of Dr.

Patel be added to the record? [ 30 ] The record was provided through the Guerrero affidavit sworn February 23, 2021, to which are attached 37 exhibits (Exhibits “A” to “KK”). [ 31 ] The parties agreed that the Record should be expanded to include at least part of the Patel affidavit, in particular Exhibits “A”. “B” and “C”. They agreed that the documents in those exhibits were considered by the Committee at the hearing or in its deliberations, so they should form part of the Record. But the Minister objected to Exhibit “D” and the substantive content of the affidavit.

Exhibit “D” is a decision of the Discipline Committee of the College dated February 25, 2022 which concerned Dr. Patel. [ 32 ]

Section 49.21(2), reproduced above, states that “The judge hearing the appeal shall consider only the record of the proceedings of the committee with respect to the order appealed from and the evidence presented at those proceedings …”.

[33] Dr. Patel relied upon a number of judicial review cases in which courts granted applications to expand the record. Giventhe difference between a statutory appeal and a judicial review, I find those decisions of limited assistance. In Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65 at para 45, [2019] 4 SCR 653 [Vavilov], the Supreme Court in the majoritydecision commented on the distinct nature of a statutory appeal: [45] That there is no principled rationale for ignoring statutory appeal mechanisms becomes obvious when the broader context ofthose mechanisms is considered.

The existence of a limited right of appeal, such as a right of appeal on questions of law or a right ofappeal with leave of a court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding.However, if the same standards of review applied regardless of whether a question was covered by the appeal provision, and regardlessof whether an individual subject to an administrative decision was granted leave to appeal or applied for judicial review, the appealprovision would be completely redundant — contrary to the well-established principle that the legislature does not speak invain: Attorney General of Quebec v.

Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 S.C.R. 831, at p. 838. [34] Exhibit “D” to the Patel affidavit, being the decision of the College’s Discipline Committee, is dated February 25,2022, so it was decided after the Final Order which is the subject of this appeal. It could not, therefore, have been considered by theCommittee. [35]

Section 49.1(2) clearly defines the record on an appeal. I agree with the Minister that the substantive content of Dr.Patel’s affidavit and Exhibit “D” fall outside the scope of that Record. I therefore decline to consider those parts of the affidavit. Giventhe agreement of the parties that the remaining parts do form part of the Record, as defined by s. 49.1(2), I have considered those parts. Standard of review [36] The standard of review on appeal is correctness on questions of law, including statutory

interpretation, and palpable andoverriding error on questions of fact or mixed law and fact. This is recognized in Vavilov at para 37 and Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at paras 29-30, 470 DLR (4th) 328: [29] This case is a statutory appeal pursuant to The Legal Profession Act, 1990 [SS 1990-91, c L-10.1]. Therefore, the standard ofreview is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v.

Quebec (Commission des droits de la personne et des droits de lajeunesse), 2021 SCC 43, at paras. 24-25. [30] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness. [37] See also: Colistro at para 21; and Malhotra at para 36. Onus on appeal [38] The appellant has the onus of demonstrating error in the decision under appeal: see Malhotra at para 91 and Colistro atpara 3: Malhotra [91] In my view, this letter does not advance Dr. Malhotra’s position. It is Dr. Malhotra’s onus to demonstrate her entitlement topayment for the services she billed.

The training or involvement of additional obstetrics nursing staff for surgical assists does notdiminish this obligation or suggest that Dr. Malhotra was unable to demonstrate her attendance on this patient. In fact, the JMPRC madeher aware, in November 2018 with the provision of the initial spreadsheet, of the specific dates and patients that were in question andprovided an opportunity to meet this onus and demonstrate her involvement in the procedures for which she billed. . . .

Colistro [3] In an appeal, the onus is on the physician who is appealing the decision to demonstrate that they met the requirements contained inthe Government of Saskatchewan’s Payment

Schedule of Insured Services Provided by a Physician [Schedule] entitling them topayment. See: New v Saskatchewan (Health), 2010 SKQB 111 at para 28. Did the Committee err in its decision? [39] As often occurs, the grounds of appeal became more focussed between the filing of the notice of appeal and the hearingof the appeal. This is illustrated in those portions reproduced above from the notice of appeal, written submissions and civil chambersappearance memo.

From the written submissions filed and oral argument made at the appeal hearing, I would group and will address thegrounds of appeal or errors under the following sub-headings: bias; reverse onus; frequency of patient attendance; use of extrapolation;inadequate documentation; and additional amount of $50,000. Bias [40] Dr. Patel argued that a reasonable apprehension of bias arose because of the participation of Dr. Butt as a temporarymember and early statements made by the Committee, including writing to the College to report concerns about Dr. Patel. This ground issuccinctly stated in Dr.

Patel’s civil chambers appearance memo, reproduced above:

Apprehension of Bias – The Committee reached its final conclusion based on its initial assessment of Dr. Patel’s statistical profile, and review of limited evidence. The Committee was aided in coming to these conclusions by an individual who was later disqualified from the Committee due to an apprehension of bias. The Committee’s consideration of evidence appears to have been guided by these conclusions, with a refusal to consider evidence to the contrary. [ 41 ] With respect to Dr. Butt, the appearance memo misstates the facts. Dr. Butt was not “disqualified from the Committee due to an apprehension of bias”.

Rather, he stepped aside to remove any question over his participation. This is explained at pages 6-7 of the Final Order (Record at S654-S655): On October 21, 2019, legal counsel for Dr. 8367 again contacted the Committee about their letter dated August 30, 2019, and indicated that they had concerns about Dr. Peter Butt’s involvement as a temporary member in this review (S538). The concerns were related to a potential “apprehension of bias” related to comments allegedly made by Dr.

Butt regarding Dr. 8367’s practice that Dr. 8367 felt were unduly “critical” (the alleged comments were not related to this particular review) and that Dr. Butt would then be unable to render a fair decision regarding the matters before him. Dr. 8367 requested that “ Dr. Butt be excused from the Joint Medical Professional Committee’s process ”. … On November 25, 2019, the Committee advised Dr. 8367 that Dr. Butt had been recused from the current review. (S547).

It is the Committee’s position that – although reservations, suspicions or general concerns of potential “apprehension of bias” are not necessarily sufficient grounds for recusal – and should be based on legitimate principled concerns and facts – the Committee opted to recuse Dr. Butt from the case out of an abundance of caustion without further investigation into Dr. 8367’s claims. On December 30, 2019, the Committee advised Dr. 8367 and his legal counsel that Dr. Brian Fern had been appointed to the Committee as a temporary member to replace Dr. Butt (S548).

Dr Fern also has expertise and experience in methadone treatment. [Emphasis in original] [ 42 ] The difference between a discretionary (voluntary) recusal and compelled disqualification is discussed in Smuk v Regina (City), 2021 SKQB 37 , 63 CPC (8 th ) 250 and Patel v Saskatchewan (Health Authority) , 2020 SKQB 194 . When there is a well-founded reasonable apprehension of bias, the decision-maker is compelled to withdraw. In that case, the involvement of the disqualified member may taint the entire panel.

A discretionary recusal, in contrast, occurs where the decision-maker chooses to withdraw for their own reasons, which may remain unstated. Those reasons may be simply to avoid the issue in the interests of allowing the matter to proceed. That is what occurred in this case. [ 43 ] Since Dr. Butt was not disqualified for bias or reasonable apprehension of bias and Dr. Patel thereafter participated in the process leading to the decision, this ground is not well-founded. [ 44 ] With respect to statements made by the Committee in the course of the proceedings, Dr.

Patel argues that by stating allegations early in the proceedings, the Committee displayed bias and then selectively chose evidence which conformed to its pre- existing view. So, for example, at para. 41 of his written submissions for appeal, Dr. Patel’s lawyer wrote: 41. The Committee noted in the Complaint that it had not yet made any formal decisions; however, made some defined conclusions such as: (

a) That Dr. Patel’s conservative dosing was to maximize billing potential (

b) That Dr. Patel’s use of urine drug screens were soley to increase and justify billings (

c) That the frequency of services provided to these patients had “no discernible purpose beyond income generation” (

d) That Dr. Patel is not conducting a functional assessment of his patients. [ 45 ] I agree that the Committee, in making these and other statements, did reveal that it had made preliminary findings after review of the material provided by the Director in his referral. But it was required to do so under s. 49.2 of the Act . Where the statute expressly requires something, the doing of that thing cannot give rise to a breach of natural justice, including bias. The statutory regime prevails over common law principles of natural justice.

See C.U.P.E. v Ontario (Minister of Labour), 2003 SCC 29 at para 117 , [2003] 1 SCR 539. [ 46 ] From my review of the Record, I am satisfied that the Committee understood this and did not have a closed mind during the process leading to the Final Order. [ 47 ] As noted above, the Committee has both an investigative and adjudicative function under the Act . [ 48 ] Having decided there was reason to investigate, based on the referral from the Director, the Committee was then obliged by the Act to provide notice to Dr. Patel as the subject physician.

So not only was the Committee obliged to make preliminary findings in order to proceed further, but it was also required to then identify those concerns in the notice to the subject physician so that he would know the case to meet and be prepared to respond. [ 49 ] Finally, Dr. Patel argues that the Committee displayed bias in writing a letter to the College reporting concerns about his medical practice. [ 50 ] The Committee addressed this issue in its covering letter of October 20, 2020 (Record at S642) in response to Dr. Patel’s submissions about the Proposed Decision:

Bias With respect to Counsel’s comments regarding “bias”, the Committee will again emphasize that the concerns related to its referral to theCollege of Physicians and Surgeons of Saskatchewan (CPSS) on March 5, 2019, were not “conclusions related to the same billing issuesaddressed in the Proposed Reassessment”. Counsel had previously raised this as an issue in correspondence dated August 30, 2019, and October 21, 2019, and the Committee willreiterate what was stated then – that the referral made to the CPSS was not billing related and was not a verdict on Dr. Patel’s conduct.

The Committee is aware that its mandate and authority under The Saskatchewan Medical Care Insurance Act is not to review the qualityof care with respect to a physician’s medical pattern of practice. When circumstances arise during the course of a review that theCommittee considers to be a potential issue relating to substandard delivery of care to patients and/or patient safety concerns, asphysicians, the Committee has a professional, legal, and ethical obligation to make a referral to the CPSS for possible investigation.

Incases where there are potential patient safety or quality of care concerns, it would be irresponsible, unprofessional and unacceptable forthe Committee as medical professionals to wait 1 or 2 years for the conclusion of its review to report these concerns to the appropriategoverning body. [Emphasis in original] [51] I find this to be a convincing and complete answer to this complaint. In this case, the Committee letter was dated March5, 2019 and the Final Order is dated October 20, 2020, so an interval of 17 months.

This supports the Committee’s expressed concernwith delay. [52] Further, the Committee was aware of its proper role, as explained in the Final Order at page 3 (Record at S651): …

Section 49.2 of the Act is not concerned with the professional competence of a physician, but only with the billings of a physicianrespecting insured services. [53] Reporting its concerns placed those issues in the hands of the proper authority.

The Committee is expressly authorizedby s. 49.8 of the Act to report matters to the College: Provision of certain information 49.8 The committee may furnish the council of The College of Physicians and Surgeons of the Province of Saskatchewan and the boardof directors of the Saskatchewan Medical Association with any information with respect to its findings of facts, recommendations andconclusions that it considers to be of interest to that council and that board. [54] This ground of appeal is dismissed. Reverse Onus [55] Dr. Patel alleges that the Committee erred in imposing a reverse onus on him in the review.

Dr. Patel points to thefollowing statement from page 21 of the Final Order (Record at S669): The Committee confirms that the onus is on the physician to demonstrate that he/she has appropriately met the Physician PaymentSchedule requirements in order to bill and receive payment for medically required services through the publicly funded system. [56] This statement is made in the context of the Committee’s discussion of documentation, in particular the inadequacy ofDr. Patel’s medical records to support his billings.

Read in this context and that of the entire Record, including the Final Order, I do notfind that the Committee imposed a reverse onus. Rather, the statement is accurate and reflects legislated requirements for payment ofbillings under the legislation, as recognized in previous court decisions. [57] In Huerto v Saskatchewan (Minister of Health) (1998), (SK KB), 170 Sask R 21 (QB) [Huerto],Baynton J. addressed a similar concern: b. Errors of Law Issues [48] The appellant alleges that the Committee committedthree errors of law. The first is that the Committee placedthe onus of proof on Dr. Huerto.

Although some of thecomments made by Committee members during the hearing might give rise to this allegation, it must be borne in mind thatthe statistical package presented by MCIB [Medical Care Insurance Branch] indicated that Dr. Huerto's pattern of billing constituted adramatic departure from the pattern of billings of the other cardiologists comprising the group mean. In other words this statisticalevidence could be considered by the Committee as a prima facie case (or a presumption) that Dr. Huerto's billings constituted a departurefrom a pattern of medical practice acceptable to the Committee.

It was then open to the Committee, in the face of this presumptiveevidence, to call on Dr. Huerto to address and rebut the presumed departure. If he failed to respond, the Committee was entitled (but notcompelled) to rely on the presumptive statistical evidence and conclude that Dr. Huerto had received payment from the minister byreason of a departure from a pattern of medical practice acceptable to the Committee. On the basis of this finding it could then make theorder it deemed appropriate. This by no means shifted the overall burden of proof to Dr.

Huerto nor did it require him to prove that hispattern of medical practice was acceptable to the Committee. [49] On the other hand if Dr. Huerto chose to respond and

give an explanation or adduce evidence from other witnesses or sources (as he did in the case before me) then the Committeewas required to consider all the evidence as a whole indeciding whether it was satisfied that there had been apayment by reason of a departure from a pattern of medicalpractice acceptable to the Committee. It could not relysolely on the presumption as being determinative of the issue.It appears from the proceedings that the Committee understoodthat once Dr.

Huerto had addressed and adduced evidencerespecting the variation illustrated by the MCIB statistics,these statistics were no longer solely determinative. Theywere simply evidence that had to be considered along with allthe other evidence presented. [58] The review process conducted by the Committee is not akin to a prosecution. It is more inquisitorial than adversarial.So even if the statement is read as asking Dr.

Patel to justify his billings to the Committee, that does not amount to reversing the onus ofproof. [59] Finally, the statement is consistent with statements in Malhotra at paras 91,113,127 and 130 placing the onus on thesubject physician to justify their billings. [60] This ground of appeal is therefore dismissed. Frequency of Patient Attendance and Use of Extrapolation [61] In deciding whether the subject physician’s billings departed from a pattern of medical practice acceptable to theCommittee, the Committee must consider all of the evidence and apply a balance of probabilities.

From my review of the Record, I amsatisfied it did so. [62] Subsection 49.2(8) of the Act, reproduced above, gives the Committee broad discretion to: … take into account anything that it considers relevant, including a statistical or other comparison between the provision of insuredservices by the physician whose insured services are being considered and the provision of insured services by other physicians or groupsof physicians, but it is not required to examine the provision of any individual insured service that has been provided by the physician. [Emphasis added] [63]

Section 49.2(8) was considered in Heurto at paras 44 and 52: [44] The legislation also provides that it is theCommittee that decides on the procedure it will follow and itmay consider whatever it deems relevant. The only significantstatutory requirement imposed on the conduct and operations of the Committee is that it must observe the rules of naturaljustice. There is no appeal by the Minister from the decisionof the Committee. . . . [52] … In determining whether an order should be made, the Committee is not required to take into account anything, even statisticalcomparison.

But it may take into accountanything it considers relevant. [64] This Court has commented on the nature and composition of the Committee in terms of giving deference on review ofits findings of fact, including methods of calculation. [65] In Belak v Joint Medical Professional Review Committee, 2015 SKQB 388 at para 140 [Belak], Krogan J. wrote: [140] The Committee arrived at a conclusion, based on a thorough review of the records, and information provided by Dr. Belak, as towhat visits were medically necessary.

The Committee members were uniquely situated to make that determination given the medicaltraining and experience they brought to the analysis. They were better able than that of the court to engage in an assessment of medicalnecessity. Deference ought to be paid to such conclusions.

As noted in Ramsahoi [Ramsahoi v Saskatchewan (Minister of Health),(1990) (SK KB), 85 Sask R 42] at para 46, the court stated: 46 ...Although a judge on appeal is given the power, in s. 49.21(1), to substitute an order it considers that the Committee ought to havemade for the order it did make, it must be acknowledged that the Act gives a committee of physicians the responsibility of insuring thatno other member of its profession is over-billing the Minister of Health.

In so doing, these physicians use their medical background andexperience in making their assessments of patterns of medical practice. [66] In Offiah v Joint Medical Professional Review Committee, 2011 SKQB 227 at para 75, 379 Sask R 186 [Offiah],Dawson J. wrote: C. The Evidentiary Support for the Orders [75] The final ground of appeal raised by the appellant is that the orders made by the Committee were not reasonably supportedby the evidence. Several cases in this Court have clearly defined the scope of this specific ground of appeal. Ramsahoi, supra [(1990),

(SK KB), 85 Sask R 42], Blackwell, supra [[1998] SJ No 249 (QL) (Sask QB)], Sothilingam v. Joint MedicalProfessional Review Committee (1998) , (SK KB), 167 Sask.R. 76, [1998] S.J. No. 257 (QL) and Huerto, 1998. Thecourt has made it clear that the appeal court should not substitute its assessment of the facts for those of the Committee, providing thefacts are reasonably supported by the evidence.

However, in determining whether the decision of a Committee is reasonably supportedby the evidence, the court must critically examine the evidence to determine whether, taken as a whole, it reasonably supports thefindings of fact. (Appavoo v. Saskatchewan (Minister of Health) et al. (1995), (SK KB), 127 Sask. R. 34 (Sask.QB), [1995] S.J. No. 30 (QL)). [67] In Huerto at para 62, Baynton J. wrote: [62] The Court is usually placed in the unenviableposition of having to consider the validity or credibility ofthis conflicting opinion evidence.

Certainly a medicallyqualified committee is in a much better position than a courtto assess such issues. In fact the legislation implies, asaffirmed by the case law, that a committee is entitled to useits expertise in assessing the evidence. The Court has nosuch advantage. If the decision of a committee is reasonablysupported by one version of the evidence, the Court in myrespectful view should give deference to the committee andshould not substitute its own view of the evidence.

The Courtshould intervene only if the evidence as a whole clearlydemonstrates that the decision of the committee is in errorbecause it is not reasonably supported by that evidence. [63] The determination by the Court of whether thedecision is "reasonably" supported by the evidence will dependin part on the nature of the evidence presented. The Court,for example, will be more inclined to rely on its own view ofthe evidence if the evidence is comprised primarily ofstatistical analyses rather than medical opinions.

As well,less deference will be given to a committee in cases, such asthe one before me, where considerable evidence has beenpresented on behalf of the medical professional under review.In such a case the judicial role of a committee becomes moreprominent than its investigative role and its own expertisebecomes less crucial to its ultimate decision. [68] This Court has also long accepted the Committee’s use of extrapolation from sample data.

See: Colistra at para 47; Mitchell v Saskatchewan (Health), 2020 SKQB 334 at para 89, 97 Admin LR (6th) 35 [Mitchell]; Offiah at para 77; Demkiw-Bartel vJoint Medical Professional Review Committee, 2010 SKQB 325 at para 19, 370 Sask R 151 [Demkiw-Bartel]; Anstead v Joint MedicalProfessional Review Committee, 2006 SKQB 221 at paras 58-59, 280 Sask R 83 [Anstead]; and Ramsahoi v Saskatchewan (Minister ofHealth) (1990), (SK KB), 85 Sask R 42 (QB) at paras 43 and 47 [Ramsahoi]: Colistra [47] In

summary, the JMPRC need not go through all of Dr. Colistro’s files one by one to determine exactly how many cases weresecond and third trimester assessments in which a 50W Doppler Study was appropriate. The legislation empowers the JMPRC to takeand consider any information it finds appropriate. [48] Although the JMPRC has broad discretion and can review anything they consider appropriate, they must nevertheless providereasons for their decision. A failure to give reasons can be an error of law.

See: R v Walker, 2007 SKCA 48 at para 64, 220 CCC (3d)528, and Anderson v Saskatchewan Human Rights Commission, 2017 SKQB 277 at para 54. Mitchell [89] After reviewing the extensive evidentiary record, I similarly conclude that the decision of the Committee with respect to thisground, and its calculation of the reassessments, was within a range of possible, acceptable outcomes. I also observe, with some interest,that in its decision regarding category 9 at p. 15, the Committee’s reassessment of 64B services resulted in an apparent increase inconfirmed billings for Dr. Mitchell.

Offiah [76] I have reviewed the evidence placed before the Committee as well as the evidence that the Committee relied upon for its orders.I am satisfied that the evidence did reasonably support the Committee’s orders to reduce partial assessment services for nursing homepatients to 70% of the pay schedule, to convert 10% of complete assessment services to partial assessment service, to reduce completeassessments and partial assessments to 97.5% of the pay

schedule and to reduce surcharges for travel to the hospital or clinic while oncall to 70% of the payment schedule. It is not appropriate that I substitute my assessment of the facts for those who heard the evidenceespecially where the legislative intent is that the primary responsibility for reassessment lies with a committee of professional colleagues. [77] In some respect, the appellant’s complaint, at least in relation to the reassessment for partial nursing home visits, is that thereassessment was unfair because Dr. Offiah received no payment whatsoever for a particular attendance at the nursing home. Theappellant asks that the court substitute a different payment

schedule for the partial assessment in relation to nursing home visits. The

Committee’s decision in this regard could reasonably be supported by the evidence. The criteria for this Court, on appeal, is not todetermine whether the reassessment was the best reassessment, but rather whether there was an error in law and whether the decision canreasonably be supported by the evidence. Saskatchewan jurisprudence, in many cases, has rejected the suggestion that the Committeemust demonstrate a mathematical foundation for the reassessment. (Ramsahoi, supra; Anstead v. Joint Medical Professional ReviewCommittee, 2006 SKQB 221, 280 Sask.R. 83; Demkiw-Bartel v.

Joint Medical Professional Review Committee, 2010 SKQB 325, [2010]S.J. No. 793 (QL).This is a matter to which this Court is obliged to give deference to the Committee. Demkiw-Bartel [19] Saskatchewan jurisprudence in many cases including Ramsahoi v. Saskatchewan (Minister of Health) (1990), (SK KB), 85 Sask. R. 42 (Q.B.), through to Anstead v. Joint Medical Professional Review Committee, 2006 SKQB 221, 280 Sask. R. 83,have unanimously rejected submissions made by counsel for physicians that the JMPRC should be obliged to demonstrate themathematical foundation for its assessment and calculations.

The complaint by appellants that the assessment calculation appearsarbitrary or at the very least was not subject to verification is consequently not a matter which gives rise to a remedy through judicialreview. Any substantive unfairness is now a matter for resolution by the JMPRC or the legislature. In the result, the appeal on theground of lack of fairness is dismissed.

Anstead [58] I am of the view that the very nature of the reassessment process with a multitude of factors that are relevant to the committeeundertaking such a process does not necessarily admit of a precise mathematical formula or template for establishing a reassessmentpercentage. The various operative factors from this menu of relevant considerations will vary greatly in each individual circumstance, andfrom time to time different factors will predominate in the weight or value to be ascribed to them as opposed to other considerations. [59] This perspective is reflected in the decision of Minhas v.

Saskatchewan (Minister of Health) (1992), (SKKB), 102 Sask.

R. 171 (Q.B.), wherein Noble J. in considering this issue observes at paras. 20-22: [20] It is my view that while the Review Committee has not spelled out precisely the method by which they concluded the appellantshould be reassessed for 15 percent of the alleged overbillings, they have in a general way indicated to the appellant, that starting withthe raw numbers provided to the Committee by the Medical Care Insurance Commission in the first instance, making allowances for themanner in which he carried on his practice, having regard to his extra training and his apparent conscientiousness, that his cost perpatient was higher than the norm, and the fact that they raised his norm from 56 percent to 77 percent indicates that they were cognizantof the explanation that the appellant gave and took it into account.

It is true that, using the raw statistics, the difference between theappellant’s cost per patient and the estimated cost per patient of 77 percent reached by the Commission leaves 21 percent unaccountedfor. But the 15 percent reassessment surely takes into account the impreciseness of this whole process, and in all of the circumstances ofthis particular case, the Committee’s conclusion seems fair to me.

Ramsahoi Is The Decision Supported In The Record Of The Proceeding And By The Evidence? [43] The objections that the Committee did not present any evidence at the hearing of how the percentage of reduction was arrivedat, what all of of the reassessed 5B services were and what was the payment

schedule rate, (in other words, what formula the Committeeused) are essentially the same as those raised by the physicians in the Datta case. [Datta and Barsoum v. M.C.I.C. (1986), (SK KB), 52 Sask. R. 1] The majority of the Court of Appeal found no merit in the argument, based on the legislation in force in1986.

The Act did not then specifically provide, as it does now, in s. 49.2(8), that the Committee could consider a comparison betweenthe provision of insured services by the physician whose insured services are being considered and the provisions of insured services byother physicians, or that it was not required to examine the provision of any individual insured service that had been provided by thephysician.

Despite this, the court held that the Commission could reassess payments to doctors pursuant to a formula prescribed by thecommittee on a global, rather than case to case basis. . . . [47] The physicians at the meeting on March 31, had the opportunity of hearing and evaluating Dr. Ramsahoi's explanations. Likeany appeal court, I should not substitute my assessment of the facts for that of those who heard the evidence, providing that these factsare reasonably supported by that evidence.

This is an important consideration in a case such as this, where the legislative intent is that theprimary responsibility for reassessment lies with a committee of professional colleagues. [69] I take from these decisions that the Committee need not demonstrate a precise mathematical foundation for itsreassessment calculation. However, the decision must provide sufficient reasons to allow for meaningful review on appeal. In otherwords, the calculation of an assessment cannot be a mystery.

It is sufficient if the resulting reassessment is within a range of possible,acceptable outcomes. [70] With this in mind, I turn to the errors alleged. [71] Dr. Patel alleges that the Committee erred in finding that he saw patients too often, requiring frequent prescriptionrefills to enhance his billing opportunities. This ground is summarized at para. 58 of Dr. Patel’s written submissions: 58. The JMPRC made several overriding and palpable errors in its reassessment of 85% of Methadone Services where patients wereseen 9 or more times during the period under review. Specifically, the Committee erred by:

(

a) Allocating an arbitrary cap of 9 visits per methadone patient; (

b) Arbitrarily assigning the value of 85% of services to be reassessed; (

c) Failing to consider both the Expert Evidence of Dr. Bordman and the evidence of Dr. Patel (

d) Relying on the documentation as a reason for reassessing frequency, despite reassessing for documentation separately. [ 72 ] With respect to the cap of 9 visits and value of 85% of services to be reassessed, I do not agree that the calculations are arbitrary so as to constitute overriding and palpable error. The Final Order goes on at some length in explaining the basis for these numbers. For example: Record at S657 Methadone Patients Inadequate practice management can lead to frequent and repeated visits billed to the publicly funded system with a lack of any apparent medical necessity.

According to the methadone data provided for the purposes of this review (fiscal year 2017/18), Dr. 8367 had approximately 429 discrete methadone patients for whom he billed at least 13 visit services each (totalling 5,630 visits). Of those 429 methadone patients, there were at least 235 patients who had least 16+ partial assessments billed – with the largest volume of partial assessments being billed 42 times on one patient.

This pattern of practice appeared to specifically relate to methadone patients being seen frequently for the sole purpose of obtaining short-term, inadequate length methadone refills even when they were stable and management was continuing on the same continuous, long-term dosage. There did not appear to be any other documented reason for the multiple, frequent partial assessments billed within short intervals of time other than for the patient to obtain further prescription refills.

When short-term inadequate length prescriptions are provided to patients, the patient is then compelled to return to see the physician at short intervals when there may not be any other medical reason to do so. Record at S660 There was no documented evidence that Dr. 8367 attempted to address any other concurrent issues and potentially wean the patient off methadone. It would be standard practice that at least some patients would eventually be weaned off the methadone successfully even when “harm reduction” is stated as the goal of methadone management.

It appeared that the frequency of visits had a demonstrated lack of discernible therapeutic purpose. [ 73 ] The Minister argued that the Committee determined that other physicians saw methadone patients an average of 7 times over a 12-month period, while Dr. Patel saw his methadone patients an average of 13 times. The Committee applied a frequency of 9 times for Dr. Patel, based upon the 15-month review period (Minister’s brief of law, para. 108; Record at S163). Most of Dr. Patel’s patients were seen to refill methadone prescriptions, which the Committee found to be unnecessary (Record at S657).

While one can disagree with the methodology, there is a rationale for it. I find no palpable and overriding error in the method or result. [ 74 ] The Final Order, at pages 12-13 (Record at S660-S661), does a review of the time available to see methadone patients at the clinics, showing an average time spent of 4.2 and 5.2 minutes per patient.

This evidence supports the Committee’s finding that only limited services could be provided to those patients, such as a prescription refill: … However, the Committee does find it possible that there may be enough time to provide a prescription refill of methadone – which was typically the only intervention documented in Dr. 8367’s medical records. [ 75 ] The Final Order goes on to allow a “15% benefit of the doubt that some of the visits billed greater than nine (9) per 15- month period may have been medically required.” (Minister’s brief of law, para. 111).

This explains the 85% reassessment ordered by the Committee. [ 76 ] The Committee ordered reassessment on other service code categories at different percentages, as set out above. In doing so, it gave reasons. For example: Record at S669 … In cases, where the documentation demonstrated that it did not fulfil these billing requirements, the Committee elected to recover the documentation portion of the service code. The Committee considers 15% to be the total value of the documentation component in each visit service code.

In Dr. 8367’s case, the Committee elected to recover the full 15% from each partial assessment billing during the period under review as described above. . . . Record at 674 Overall, there was incomplete documentation observed in all of the complete assessment records reviewed by the Committee. This resulted in an inappropriate pattern of practice associated with complete assessments being billed to the publicly funded system.

It is for this reason the Committee has ordered that 50% of the fee for each complete assessment code be recovered by the Minister, as the Committee was of the opinion that only half of the required components had been documented and, thus, not eligible for full payment. . . .

Record at 676 It is the Committee’s position that there were many factors that resulted in an inappropriate pattern of practice associated with billing consultation services by Dr. 8367. It is the Committee’s position that at least half of the consultations billed did not meet the requirements for full payment. . . .

Record at S678 Overall, based on the documentation requirements and list of components required for each service code, the Committee felt that based on the documentation that was present in the record, including the fact it was illegible, at least 50% of the consultations billed would meet the bare minimum requirements of a partial assessment, but not a consultation service.

Therefore, the Committee has ordered that 50% of all consultation services be converted to partial assessments and recovered by the Minister. [ 77 ] The different percentages applied to different service code categories shows that the Committee turned its mind to the particular circumstances of the different categories of billings and determined different percentages based on the evidence applicable to each inappropriate pattern of practice (85% of 5B partial assessment for methadone patients with over 9 visits; 20% of partial assessments for non-methadone patients; 15% of documentation of partial assessments; 50% of complete assessments (3B) in an office setting; 50% of 9B consultations converted to partial assessments; 100% of urine collection and referral of specimens; and 75% of 794A prescription refills).

This variation counters the argument that the percentages were determined arbitrarily. [ 78 ] The Final Order makes repeated findings that work billed was not performed and not documented, which is a requirement for payment. For example, at page 18 (Record at S666): It is the Committee’s opinion that not all of the required components of a partial assessment had been performed and documented. There was rarely a physical examination documented. … [ 79 ] Having determined that Dr.

Patel did not perform some or all of the services billed, the Committee, based on its review of the evidence, estimated the percentages to be repaid. [ 80 ] Having regard to the decisions quoted from above and my review of the Record, I find that the calculations are reasonably supported by evidence. I find no overriding and palpable error in the Committee’s determination of frequency nor in its extrapolation in calculating percentages for reassessment. [ 81 ] With respect to the report of Dr. Bordman and the evidence of Dr. Patel, the Record does not support Dr.

Patel’s complaint that the Committee failed to consider their evidence. The covering letter dated October 20, 2020 at page 3 (Record at S644) stated that Dr. Bordman’s report was considered: Frequency of Attendances (partial assessments) (5B) It should be noted that the Committee reviewed the opinion provided by Dr. Joel Bordman in support of Dr. Patel’s pattern of medical practice, including the academic literature submitted therein. [ 82 ] The extensive dialogue between Dr. Patel and Committee members and references to Dr. Patel’s evidence in the Final Order shows that Dr. Patel’s evidence was considered.

The fact that it was not persuaded by Dr. Bordman’s report or Dr. Patel’s evidence and argument does not amount to overriding and palpable error. The Committee was entitled to accept or reject evidence in whole or in part. [ 83 ] Some of Dr. Patel’s evidence was not accepted because of stated concerns with his credibility. So, for example, the Committee wrote in the Final Order at pages 9-28: Record at S657 … The Committee can typically determine the appropriateness of the frequency of visits when the documentation supports it.

However, this could not be always established with certainty due to the incompleteness of the documentation presented by Dr. 8367.

The Committee was then left largely to rely upon the incomplete documentation and the explanations provided by Dr. 8367 during the interview in determining whether or not Dr. 8367 met his billing obligations with respect to justifying the medical necessity of the visits, and whether Dr. 8367’s explanations were credible . . . . … However, what the Committee did not find credible or likely was that Dr. 8367 was actively managing these concurrent issues or providing any other therapeutic, medical or supportive interventions beyond that of a methadone prescription which would justify the medical necessity of the visits. … . . .

Record at S660 To further demonstrate the Committee’s concerns regarding the credibility of Dr. 8367’s claims that he was actively managing the complex and complicated needs of his addiction patients, with respect to the methadone services he provided at the Parliament Methadone Harm Reduction Clinic (Dewdney Avenue) on Thursday and Friday mornings from 7 am to 10:30 am, the Committee

reviewed Dr. 8367’s pattern of medical practice associated with the patients billed during this time. . . . Record at S661 … The Committee did not find it credible that these very specific details could be recalled with such certainty by Dr. 8367 at least 3 years after the services had occurred when none of the information was documented in the medical record. … . . .

Record at S672 … The Committee had great difficulty believing that Dr. 8367 could recollect each and every patient encounter with that degree of certainty and detail almost 3 years after the services had occurred without those details being documented. … . . .

Record at S676 … The Committee had great difficulty believing that Dr. 8367 could recollect each and every patient encounter with that degree of certainty and detail almost 3 years after the services had occurred without those details being documented. … [Emphasis added] [ 84 ] Credibility findings are accorded deference on appeal because the trier of fact had the first-hand opportunity to assess the witness. [ 85 ] Dr. Patel argues that the Committee erred in failing to conduct a credibility assessment. I disagree. The Final Order is detailed and reasoned. The Committee gave reasons why it doubted Dr.

Patel’s explanations. Further, decision-makers need not provide detailed reasons for every possible aspect pertaining to a decision. [ 86 ] I also disagree with Dr. Patel’s complaint that the Committee relied exclusively on the documentation in making its findings. That contention ignores the reality of the dialogue and questioning at the interview which clearly informed the Committee in coming to its decision. [ 87 ] With respect to relying on documentation for reassessment for frequency of visits, when also reassessing for inadequate documentation, I find no contradiction.

The reassessments ordered for incomplete documentation expressly excluded “any assessment reassessed under item 1”. As will be discussed below, the reassessment for inadequate documentation is a separate matter. [ 88 ] The documentation was part of the evidence relied upon by the Committee in determining whether the medical services billed were medically required and whether the billings departed from a pattern of acceptable medical billing practice. [ 89 ] There was ample evidence to support the Committee’s finding that Dr. Patel’s documentation was incomplete and inadequate to support his billings. [ 90 ] Dr.

Patel argues that the Committee’s reassessment of 20% of his 5B partial assessments for non-methadone patients under the heading “frequency” was entirely arbitrary. Dr. Patel summarizes this ground of appeal in para. 83 of his written submissions: 83. The Committee reassessed 20% of all of Dr. Patel’s partial assessments under the heading of “frequency”. It is submitted that the JMPRC made the following errors: (

a) The JMPRC erred in its extrapolation, and reassessed patients who were not represented in the profiles or records. Further, the JMPRC erred in its arbitrary assignment of 20% of services. (

b) The JMPRC failed to consider and unreasonably dismissed Dr. Patel’s explanations; (

c) The JMPRC based the reassessment for frequency on documentation, which was also assessed under Item #2 of the Final Order; and (

d) The JMPRC based part of the reassessment for frequency on prescription refill requests by the pharmacies, which was also assessed under Item #6 of the Final Order. [ 91 ] Much of the above discussion and analysis about “Frequency” applies equally to these grounds. [ 92 ] The Committee made similar observations about the non-methadone patients in the Final Order at pages 13- 15 (Record at S661-S663), concluding: Overall, there was a general lack of medication management observed in many patient records and the Committee saw many examples of multiple visits where medication refills could have been better managed.

This caused an inappropriate pattern of practice generating frequent, non-medically required services to be billed to the publicly funded system. The Committee affirms that it is the physician’s responsibility to manage patient prescriptions and ensure adequate length refills are provided at each patient encounter so the physician does not generate an inappropriate pattern leading to frequent, non-medically required billings. [ 93 ] Dr. Patel also argues that the Committee erred in reassessing 50% of 9B consultations and 75% of 794A prescription refills.

The above discussion is equally applicable to these grounds.

[ 94 ] I dismiss all of these grounds. Inadequate Documentation [ 95 ] Dr. Patel argues that the Committee erred in reassessing him for inadequate documentation. [ 96 ] In Malhotra at para 167 , Crooks J. recognized the requirement for proper documentation to support payment for billed services: CONCLUSION [167] A physician has the freedom to choose the level of documentation they make after attending on a patient. However, they must be mindful that there is a process in place to review their billings and confirm they provided a medically necessary service and that they billed the proper code.

The absence of documentation may draw an inference that the service was not provided at all, that the service was not medically necessary or that the wrong billing code was used. If a physician chooses to make inadequate or incomplete notes regarding a patient’s visit, they risk the ability to collect or retain payment for that service. [ 97 ] This Court in previous decisions criticized the Committee for purporting to reassess physicians for incomplete or illegible billings when the necessary medical service was provided.

See, for example: Michel v The Joint Medical Professional Review Committee , 2019 SKQB 209 at paras 39-44 ; and Offiah at para 70 . But that is not the case here where the Committee concluded billed services could not have been provided given the little time spent with patients or could not be verified because of inadequate records. [ 98 ] Moreover, those decisions involving billing periods which pre-dated the 2015 and 2017 amendment to the Physician Payment

Schedule which introduced specific requirements for documentation, shown in the Final Order at pages 16-17 (Record at S664- S665) and pages 22-23 (Record at S670-S671): Effective October 1, 2015, the Physician Payment

Schedule states as follows under the heading “Documentation Requirements for the Purposes of Billing”: For billing purposes, the physician is responsible for documenting and maintaining an adequate medical record that appropriately supports the service being provided and billed, regardless of method of reimbursement to physician (fee-for-service, contract/shadow biller, etc.) To be considered adequate, a medical record for billing purposes must be legible and contain the information specifically designated in the Physician Payment

Schedule service codes depending on the classification of the service.” Visit Services: • All service code criteria must be documented. Effective April 1, 2017, the Physician Payment

Schedule states as follows under the heading “Documentation Requirements for the Purposes of Billing” – new additions are bolded : Documentation is an integral and fundamental component of a medical service. An adequate record will enhance quality and accountability, and provide protection for the physician, the beneficiary and the Ministry. To be considered adequate, a medical record must be legible and contain the information specifically designated in the Physician Payment

Schedule service codes depending on the classification of the service. The record must also establish that: 1. An insured service was provided; 2. The service for which the account is submitted is the service that was rendered; and 3. The service was medically required . ” Visit Services: • All listed service code criteria must be documented. [Bolding in original] [ 99 ] This change is significant in emphasizing the importance of complete and legible medical records, both for billing purposes and to ensure proper medical histories and care of patients.

Completing medical histories is part of the work for which physicians are paid. The Final Order explains that at page 17 (Record at S665): The

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