DR. KOFI AMU-DARKO APPELLANT - v. -, 2023 SKKB 48

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 48 Date: 2023 02 24 Docket: QBG-RG-02817-2019 Judicial Centre : Regina IN THE MATTER OF THE SASKATCHEWAN MEDICAL CARE INSURANCE ACT , RSS 1978, c S-29 AND IN THE MATTER OF AN ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE DATED SEPTEMBER 24, 2019 BETWEEN: DR. KOFI AMU-DARKO APPELLANT - and - THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE AND MINISTER OF HEALTH (SASKATCHEWAN) RESPONDENTS Counsel: Richika Bodani for the appellant Johnna Van Parys and Alexa La Plante for the respondents JUDGMENT McMURTRY J. FEBRUARY 24, 2023 [ 1 ] Dr.

Amu-Darko appeals from an order made by the Joint Medical Professional Review Committee [Committee] on September 24, 2019 [Order] under s. 49.21(1) of The Saskatchewan Medical Care Insurance Act , RSS 1978, c S-29 [ SMCIA ]. [ 2 ] The Committee made the Order after reviewing Dr. Amu-Darko’s billings between December 7, 2015 and March 10, 2017 [Review Period] and comparing them to the billings of his peer group, consisting of rural family doctors in solo practices. The Committee randomly selected billing histories from a group of patients for whom Dr.

Amu-Darko reported a high number of services during the Review Period. In the result, the Committee ordered the recovery of approximately 40% of the fees paid to Dr. Amu-Darko between December 7, 2015 and March 10, 2017. Grounds of Appeal [ 3 ] Dr. Amu-Darko [Physician] appeals from the Committee’s Order to this Court. The question he raises is

simply whether the Committee adequately explained why it reduced his billings. In particular, he argues that the Committee erred in itsOrder as follows: 1. The Committee failed to adequately explain the use of extrapolations in re-assessing the Physician’s billings during the ReviewPeriod. 2. The Committee read in limitations on the number of complete assessments permitted under the relevant payment

schedule andadded document requirements not found in that payment schedule. 3. The Committee did not consider the Physician’s explanation for ordering complete assessments, nor did it consider his fullstatistical profile. 4. The Committee failed to explain why it imposed the additional amount of $15,000. [4] The Minister of Health [Saskatchewan] submits the Committee did not err as alleged and seeks dismissal ofthe appeal. Standard of Review [5] The record of the proceedings before the Committee, including the Committee’s decision [Decision] andOrder, are found in the affidavit of David Guerrero, sworn August 28, 2020 [Affidavit]. [6]

Section 49.21 of the SMCIA provides for an appeal of the Order to this Court. It reads: 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 appealto 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 localregistrar 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 appealedfrom and the evidence presented at those proceedings and may make an order: (

a) affirming or varying the order appealed from; (

b) refering (sic) 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 orother order of the judge.

(4) There is no appeal from the decision of a judge pursuant to this section. [7] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov],the Supreme Court discussed the standard of review on an appeal of a decision of an administrative tribunal, as opposed to an applicationfor judicial review: [36] We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’sinstitutional design choices to delegate authority through statute.

In our view, this principled position also requires courts to give effect tothe legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that thecourt is to perform an appellate function with respect to that decision. Just as a legislature may, within constitutional limits, insulateadministrative decisions from judicial interference, it may also choose to establish a regime “which does not exclude the courts but rathermakes them part of the enforcement machinery”: Seneca College of Applied Arts and Technology v.

Bhadauria, (SCC),[1981] 2 S.C.R. 181, at p. 195. Where a legislature has provided that parties may appeal from an administrative decision to a court, eitheras of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court toscrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption ofreasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than acourt. This intention should be given effect.

As noted by the intervener Attorney General of Quebec in her factum, [translation] “[t]herequirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-makingprocess the legislature intended to put in place”: para. 2. [37] It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to acourt, a court hearing such an appeal is to apply appellate standards of review to the decision.

This means that the applicable standard isto be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where,for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questionsof statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness inaccordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includesquestions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed factand law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37.

Of course, should a legislature intendthat a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing theapplicable standard through statute. (Emphasis added)

[ 8 ] The Physician asserts that the Committee’s

interpretation of The Saskatchewan Medical Care Insurance Payment Regulations, 1994 , RRS c S-29 Reg 19 [ Regulations ], and the payment

schedule enacted under the Regulations , is subject to a review on correctness. Because the Committee investigates, prosecutes, and decides whether a physician has violated the SMCIA , he argues that minimal deference to the Committee’s decision-making is appropriate.

Moreover, the Physician argues that the Committee’s expertise deserves less deference because the Committee did not include a member who is a physician with a rural practice. [ 9 ] Saskatchewan disagrees and submits that the Committee’s decision should be reviewed on the standard of palpable and overriding error because the Committee was called upon to apply facts obtained from the statistical profile, patient records, and testimony at the hearing, to the relevant payment schedule.

As such, the decision is fact-based, or, at best, raises questions of mixed fact and law. [ 10 ] Saskatchewan’s position is consistent with Bardai J.’s finding in Colistro v Joint Medical Professional Review Committee , 2021 SKQB 62 [ Colistro ], wherein he discussed the appropriate standard of review on an appeal under s. 49.21 of the SMCIA : [21] The

interpretation of the Act [ The Saskatchewan Medical Care Insurance Act , RSS 1978, c S-29 ], the Regulations [ The Saskatchewan Medical Care Insurance Payment Regulations, 1994 , RRS c S-29 Reg 19 ] and the

Schedule enacted pursuant to the Regulations are questions of law and are subject to review on a correctness standard. See: Abrametz [2020 SKCA 81], at paras 71-85. That said, the application of the statutory criteria to the evidence to determine whether Dr. Colistro was billing appropriately are questions of mixed fact and law, reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law. … [ 11 ] Saskatchewan argues moreover that it is inappropriate for the Physician to raise the issue of bias here when he did not complain about it before the Committee.

In any event, Saskatchewan asserts that allegations of bias are restricted to a complaint of a breach of natural justice, which the Physician has not alleged. [ 12 ] I agree with Bardai J. that the Committee’s application of the SMCIA and Regulations to the facts in this case is a question of mixed fact and law and requires a review on the standard of palpable and overriding error.

I agree also with Saskatchewan that the Physician did not address the Committee on its composition and should not be permitted to do so here, as a new matter on appeal: see Nelson v Little Estate , 2005 SKCA 120 at para 6 , 269 Sask R 231. [ 13 ] Finally, on the question of considering the expertise of the Committee, I agree with Saskatchewan that the decision of the Supreme Court of Canada in Vavilov represented a move away from the contextual approach found in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 for which expertise of the tribunal was a consideration.

In Vavilov , the court held that the appeal mechanism in statutes like the SMCIA requires courts to apply appellate standards of review to the decision, suggesting that the expertise of the tribunal is not a separate factor for consideration. The Role of the Committee Under the SMCIA [ 14 ] Under s. 18(1) of the SMCIA , the Minister of Health may make payment to a physician for the provision of “insured services”.

Insured services are defined under s. 14(1) of the SMCIA as “services that are medically required”. [ 15 ] Under s. 18(2) of the SMCIA , where a physician has entered into an agreement with the Minister of Health to receive payment for insured services, the physician will receive payment in accordance with the provisions of that agreement. [ 16 ] The relevant agreement here is a Direct Payment Agreement, effective January 1, 2011 [Agreement], which provides that payment for an insured service will be made in accordance with the “Saskatchewan Health Payment

Schedule and the Assessment Rules contained in that schedule, and the [ Regulations ]” [Payment Schedule]: Affidavit at Exhibit BB. [ 17 ] In Colistro , Bardai J. explained that a physician will be paid for an insured service if the service meets certain criteria, summarized as follows: [10] The

Schedule defines the procedure, the applicable assessment criteria and the fee payable in relation to services provided by a physician. The Act , however, does not contemplate that the Government will pay every account blindly and without question simply because a service has been performed and billed for. These are public funds, and the Government, therefore, has some authority to look behind the account presented. The Government can request additional information, question the accounts where circumstances warrant and deny payment where appropriate.

See for example: Huerto v Saskatchewan , 2008 SKCA 107 at paras 32-35 , 311 Sask R 288 . [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 . (Emphasis added) [ 18 ] The Committee was established under s. 49.2 of the SMCIA to review the payments made to the Physician, after

a random audit found deviances in the Physician’s statistical profile. Because it appeared to the Director of Professional Review,appointed under s. 49.1 of the SMCIA, that the Physician had been paid for services “by reason of [a] departure from a pattern of medicalpractice” (SMCIA, s. 49.2(2)), he referred the results of the audit to the Committee for review. [19] The Committee was chaired by a family physician from Regina.

Other Committee members were a familyphysician from Prince Albert, a family physician from Regina, an anesthesiologist from Saskatoon, and a general surgeon from Regina. [20] As required under s. 49.2 of the SMCIA, the Committee reviewed the payments made to the Physician duringthe Review Period.

In Colistro, Bardai J. discussed the committee’s role when undertaking such a review: [13] The JMPRC derives its authority from s. 49 of the Act, which empowers the JMPRC to review billing patterns of physicians and,in cases where they determine that monies have been paid by the Minister inappropriately, to order recovery from the physician. TheJMPRC's role is to determine whether a physician should be required to repay the Minister of Health because of overbilling, erroneousbilling or because the services provided were unnecessary or excessive.

For the purposes of carrying out its duties, the JMPRC maydetermine 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 medicalpractice is acceptable to the Committee.

Section 49.2 is not concerned with the professional competence of a physician but with thebillings of a physician respecting insured services. ... [67] This view has been echoed in numerous cases since. See: Offiah [Offiah v Joint Medical Review Committee, 2011 SKQB 227,379 Sask R 186] at paras 64 and 72. Questions of competence are not within the mandate of the JMPRC. (Emphasis added) The Committee’s Decision [21] The Committee held a hearing on February 28, 2019, at which the Physician testified.

Thereafter, on May 6,2019, the Committee provided the Physician with its proposed decision, to which the Physician responded. The Committee Chair wroteto the Physician by letter dated September 24, 2019 [September 24, 2019 Letter], enclosing the Committee’s final decision and its Order.Thereafter, the Physician made further submissions by letter, but the Committee confirmed its Order, by letter, on October 23, 2019. [22] The Order directed the Physician to reimburse $194,512.69 to Saskatchewan, representing a reassessment of41% of the services billed by the Physician during the Review Period.

The terms of the Order read as follows: 1. Because of the inappropriate frequency of non-medically necessary complete assessments (3B), complete assessments billedduring the period under review will be recovered by the Minster as follows: a) 95% of complete assessments associated with prescheduled injections (B12 with diagnosis “other anemias”, allergy) and minorprocedures (52T, plantar warts, lesion excisions, etc) will be recovered; b) 95% of the minor procedures billed at 75% in addition to a complete assessment, will be raised to 100% to reflect the absence(recovery) of the complete assessment; and

c) Of the remaining complete assessments, 90% will be converted to partial assessments (5B) – this reassessment applies to 3Bs withoffice location only. … 2. Because of the inadequate documentation of complete assessments (3B), 10% of the remaining complete assessments (3B) billedduring the period under review will be recovered by the Minister (excluding services assessed under point (1). … 3.

Because of the inappropriate frequency of billing for non-medically required partial assessments (5B) billed in conjunction withinjections (B12 with diagnosis of “other anemias” and allergy) and prescheduled minor procedures such as 52T, 877L-879L, 603L-605L,857L, 860L, etc, 80% of partial assessments billed during the period under review will be recovered by the Minister. Note: 80% of eligible procedures will be raised to 100%. … 4. Because of the inappropriate frequency of billing for non-medically required partial assessments (5B), 5% of partial assessment

billed during the period under review will be recovered by the Minister (excluding any services reassessed under point (3)). … 5. Because of the inadequate documentation of partial assessments (5B), 14% of partial assessment billed during the period under review will be recovered by the Minister (excluding any services reassessed under points (3) and (4)). … 6. Because of the inadequate documentation of counselling (40B/41B), 15% of counselling (40B/41B) billed during the period under review will [ sic ] recovered by the Minister. … 7.

Because of the inappropriate frequency of billing for non-medically required counselling (40B/41B) visits, 5% of counselling (40B/41B) billed during the period under review will [ sic ] recovered by the Minister. … 8. Because of the inappropriate billing of “Telephone one Calls/Facsimile/Email initiated by Allied Health Care Personnel to Discuss Patient Care and Management” (791A), 50% of 791As of billed during the period under review will [ sic ] recovered by the Minister. (Affidavit at Exhibit

T) Issues in Dispute [ 23 ] The Physician argues that the Committee fell into error by reading additional requirements into the Payment Schedule, failed to address the Physician’s explanations for his billings, and, relied on the Physician’s failure to document as a reason for reassessing his billings twice: for frequency and for poor documentation. [ 24 ] Saskatchewan argues that the Committee’s function was to determine whether the Physician received payment “by reason of any departure from a pattern of medical practice acceptable to the committee” ( SMCIA , s 49.2(2)).

In making this determination, the Committee decided, amongst other things, that the Physician received payment for services not performed, for services not performed in accordance with the Payment Schedule, and for services that were not medically necessary. [ 25 ] I accept that the following is in issue on this appeal: 1. Did the Committee improperly impose reassessments based on frequency of services provided? 2. Did the Committee improperly impose reassessments for inadequate documentation? 3. Did the Committee improperly impose an additional amount of $15,000? 1.

Did the Committee improperly impose reassessments based on frequency of services provided? [ 26 ] The Physician has the onus of demonstrating that he met the billing requirements in the Payment Schedule: Colistro , para 3 . At the hearing, the Physician was asked to explain why he billed certain medical services in 14 patient files chosen by the Committee. [ 27 ] The Physician testified that he has practiced family medicine in Maple Creek, Saskatchewan, since 2012, and as a solo practitioner there since May 1, 2015.

He explained that there is a high demand for primary care providers in the large geographical area his clinic services. He sought to provide safe and timely access to care, so that patients can receive care in Saskatchewan, rather than travel longer distances to out of province physicians. [ 28 ] The Physician testified that he believes his method of practice reduces hospital admissions because he is catching problems before they require acute care.

In his opinion, to successfully manage the treatment of seniors and others with chronic conditions, outside a hospital, consistent, frequent, follow-up is required. [ 29 ] The Physician explained his philosophy of practice to the Committee. The following provides a flavour of his views: The scope of my practice is to offer the full range of general practice services, the result of this being that as being the first point of contact for anyone with physical or mental health problems. My practice approach is wholistic and patient centered. The intention is to provide womb to grave care.

The cornerstone of this is that I treat every patient as an opportunity that -- every patient contact as an opportunity for not just treating the acute or chronic disease, condition that might have brought them in, but also as an opportunity for collecting information, health education, disease prevention, advice on health promotion, advice on lifestyle and immunization, smoking, exercise and the like. As a result I do not have dedicated annual medicals, unless some people have the habit, and occasionally you get somebody you come across and said I want to have an annual physical.

Even with that sometimes I’m able to dissuade them that it is not necessary because I may have all the information they’re really looking for. The rationale for doing the care and the monitoring being on a continual basis are twofold. As I often tell my patients, I like preventing

fires rather than putting them out. … Also where I practice in Maple Creek we have an understanding among the doctors in the community that unless a patient is complex, usually for minor ailments the one who starts the treatment, whether as an in patient or as an out patient, completes it.

Of course if it’s complex, and especially if the other doctor has been dealing with it for some time and for any reason they couldn’t get to see him and they see one of us, then you would discuss with the other doctor and either hand the patient over or he or she may give you advice as to how to mange that particular problem, and in so doing you don’t repeat things that has been done. This, we think that -- we think that this cooperation prevents, you know, people jumping around from doctor to doctor looking for answers because they didn’t get like the last answer they got.

And this approach, again, we think a loss of continuity of care for the acute situation, while leaving the chronic conditions still being managed by the most responsible family doctor. (Affidavit, Exhibit CC: Transcript of Hearing [Transcript], page 10, lines 15 to page 11, line 20; page 14, lines 9 to page 15, line 9) [ 30 ] The Physician summarized his philosophy of practice by saying that he “reduces the cost of [his patients’] care to the taxpayer and helps them – keep them in the community longer”: (Transcript, page 16).

Complete Assessments [ 31 ] As permitted by s. 49.2(8) of the SMCIA , the Committee considered statistical profiles comparing the Physician to his peers, a group of 20 rural, solo, family physicians: Affidavit, Exhibit A, page N7. The statistics revealed a significant discrepancy between the number of “complete assessments” performed by the Physician and those performed by his peer group. [ 32 ] According to the statistics reviewed, the Physician’s rate of complete assessments was 491% of the mean.

However, the statistics also revealed his rate of discrete patients seen during the Review Period was 93-121% of the mean; his cost per discrete patient was 88-96% of the mean; his total services per patient was 71-88% of the mean and his overall billings were 85-118% of the mean. [ 33 ] The most significant reassessment ordered by the Committee was the conversion of 90% of the Physician’s complete assessments to partial assessments. [ 34 ] The Physician acknowledged performing more complete assessments than his peers because of the demand in the local and surrounding areas and the number of new patients he treated during the Review Period.

He testified that if he has not seen a patient before, he performs a complete assessment to satisfy himself that the patient’s only health concern is the one the patient has come to see him about. [ 35 ] The Physician argues that the Committee should have considered the cost savings in preventative care realized because of his practice of performing more complete assessments than the average.

Moreover, he notes that with the Committee’s re- assessment, he will be paid significantly less than his peer group during the Review Period, although he treated more patients than his peer group during that time. [ 36 ] The Payment Schedule, at code 3B, describes a complete assessment as follows: 3B Complete Assessment -- includes:

a) pertinent family history;

b) patient history;

c) history of presenting complaint;

d) functional enquiry;

e) examination of all parts and systems;

f) assessment;

g) diagnosis;

h) necessary treatment;

i) advice to the patient; and

j) record of service provided. (Affidavit, Exhibit AA, page N5000) [ 37 ] The codes for complete and partial assessments are similar, but the former includes taking a pertinent family history and a patient history, while the latter refers only to reviewing the histories previously recorded. In addition, the partial assessment refers to examining “affected” parts or systems rather than “all” parts and systems.

[38] In its decision, the Committee explained its reasons for re-assessing certain complete assessments, such that theywere to be re-billed as partial assessments, as follows: It was established during the interview and through review of the medical records that the requirements for billing a completeassessment were not met in the vast majority of cases. Most of the complete assessments were billed for clinical conditions that wouldnot necessitate that a full history and physical be undertaken, such as cerumen impaction, sore throat, review of x-rays, sinusitis,medication refills etc.

There were many reasons provided by Dr. 0171 for this pattern of practice such as: ► Physician “does not know the patient” or it’s not his regular patient, therefore, requiring a more thorough and in-depth assessment; ► Physician provides a “holistic approach” and sees the patient “as a whole”; ► Physician’s patients are more complex, therefore, requiring more detailed and in-depth assessments; ► Physician “doesn’t just see the patient for the problem at hand”; ► It is a “good opportunity to make sure the patient is checked out”’ ► It is a “good opportunity to make sure he’s not missing anything”; ► “Inadequate knowledge and confusion” on how to apply the billing codes; ► “The patient is not a physician”. (Affidavit, Exhibit T, page N707) [39] The Physician takes issue with the Committee’s reasons.

He argues that the Committee read in a theory ofpractice to the Payment

Schedule that is not there when it stated: Typically, complete assessments are billable for periodic annual health exams or when the medical necessity or complexity of theclinical condition requires that a full or more thorough assessment be undertaken. (Affidavit, Exhibit T, page N705) [40] The Physician also argues that the Committee’s explanation for its reassessment is inadequate because it doesnot refer to the specifics of any patient file to demonstrate why the assessment should be labelled as “partial” and not “complete”. [41] Most significantly, the Physician argued that he explained his philosophy of care to the Committee and pointedout that his cost per patient was below the mean, but his explanation was disregarded.

In other words, he asserts that he was re-assessedbecause he used his professional judgment to perform complete assessments, not because he did not in fact do the complete assessments. [42] Central to the Physician’s appeal is his concern that the Committee arbitrarily extrapolated its findings inrelation to a few complete assessments to demand repayment of 95% of the Physician’s complete assessments, when the assessmentswere performed along with prescheduled injections and minor procedures, and converted 90% of his complete assessments to partialassessments. [43] Moreover, he submits that the Committee reviewed only the files with more than two complete assessmentsduring the Review Period and did not explain why the extrapolation included patients who had fewer complete assessments during theReview Period. [44] The Physician noted the following statistics: 1.

During the Review Period, the Physician billed for complete assessments on 1861 patients. 2. The Committee reviewed the patient records for 14 of the 519 patients who received three or more complete assessments duringthe Review Period. 3.

The Committee did not review the patient records for the 1342 patients who received two or fewer complete assessments duringthe Review Period. [45] The Physician relies on the following finding by Bardai J. in Colistro, where he found the committee had notexplained the extrapolations it made and thus committed an error in law: [50] The reasons and analysis given by the JMPRC fail to identify how the JMPRC reached its decision that 85% of the fees shouldbe recovered beyond finding that this treatment was not appropriate in the first trimester of pregnancies.

Was this decision a result ofextrapolating from the 150 cases that were reviewed? Was it a result of checking the profile against other physicians? Was it a result ofthe interview? Was this the Committee’s assessment of what is typically seen? We simply do not know. There is nothing in the record orthe transcript explaining how they got to 85%. Counsel for the JMPRC was unable to identify anything in the record which explained thefinding that 85% of the billings ought to be returned. It may be that this finding is entirely appropriate, but Dr. Colistro is entitled toknow how that number was reached.

Without that, this Court cannot assess whether there was any palpable and overriding error. Thereasons in this regard are insufficient to meaningfully inform an appeal. The JMPRC’s failure to identify its rationale in reaching itsnumber of 85% was an error of law and, accordingly, this issue must be remitted back so that the JMPRC can review their decision todetermine if the conclusion was appropriate and provide some reason for such a conclusion based on the record before them. [46] In Sothilingam v Joint Medical Professional Review Committee (1998), (SK KB), 167 Sask

R 76 (QB) [Sothilingam], Zarzezcny J. considered the question of extrapolating from a small number of patients to a large number: [27] When one reviews the transcript with respect to the some eight or so (of the group of 151 seen more than 10 times) cases thatwere actually taken up with Dr. Sothilingam it is clear that in a number of them he admits the over-servicing and partial assessmentbillings.

For the JMPRC, however, to conclude, as it did, that this conclusion and to a considerable extent admission by the appellant)can then form a proper basis for the further conclusion that the far larger bulk of patients seen more than once but less than 10 timeswere equally over-serviced (resulting in the order reducing by 10% all partial assessment billings (5B and 6B) for patients seen morethan once) cannot be supported. … [34] In a very real sense the JMPRC failed in its duty to provide Dr. Sothilingam a fair hearing being an important element to therequirement of natural justice.

It did so by failing to request particular patient records from Dr. Sothilingam respecting patients seenfewer than 10 times. Further, in thereafter failing to take any of these cases up with him in the hearing or give him an opportunity toprovide his explanations (as he was permitted to do for at least eight of the patients having 10 attendances or more) the JMPRCeffectively denied Dr. Sothilingam the opportunity to know and thereafter to make full answer and defence to the case against him (SeeDatta v Sask. Medical Care Insurance Commission (1986), (SK CA), 52 Sask R 18 at pp 33-34).

While in a generalsense he may have been aware that the issue with which the JMPRC was concerned was the question of over-servicing in the context ofpartial assessment (5B and 6B) billings, nevertheless any reasonable person would have concluded that because the patient files whichhe was requested to bring concerned only those patients in the category of 10 visits or more and, additionally, the questioning at thehearing was confined to these patient files, concerns with respect to the second category namely, those patients attending fewer than 10times were not an issue and therefore need not be the focus of evidence or submissions. [35] In the end result, the (

b) portion of the order in effect "sweeps in" the largest patient group into the reassessment order withoutany or sufficient evidentiary basis or opportunity to the appellant to address that conclusion. [47] Saskatchewan distinguishes the decision in Sothilingam arguing that the Committee did not reassess thePhysician’s 3B services because he over serviced some patients. Saskatchewan argues the Committee reassessed his billings because of alack of medical necessity. [48] Moreover, Saskatchewan argues that the time-consuming process of examining each service billed is notrequired.

Section 49.2(8) of the SMCIA states: 49.2 …

(8) In determining whether an order should be made pursuant to subsection (5) or (7), the committee may take into account anythingthat it considers relevant, … but it is not required to examine the provision of any individual insured service that has been provided by thephysician. [49] Subsection 49.2(8) was discussed by Krogan J. in Belak v Joint Medical Professional Review Committee, 2015SKQB 388. She wrote as follows: [95] Dr.

Belak submits that the Committee reviewed very few patient files, decided that some of the visits connected to those patientswere not medically necessary and applied that conclusion across his entire practice. … [102] Subsection 49.2(8) of the Act [The Saskatchewan Medical Care Insurance Act, RSS 1978, c S-29] does not require such ananalysis as Dr. Belak is suggesting the Committee should have undertaken. That subsection reads, in part, that the Committee is “notrequired to examine the provision of any individual insured service that has been provided by the physician”.

The Committee focussed on465 patients attended to by Dr. Belak on more than 15 times in the review period for a total of 18,159 attendances. Of that number, thebilling for 6,975 attendances remained unchanged, while 11,184 attendances were reduced by 90% or 95%. It would be far too onerousto have placed upon this Committee, or any other, the obligation to make inquiries about every patient who formed part of theCommittee's analysis. As counsel for the Minister of Health pointed out, if one minute was spent discussing each of the 11,184attendances, the hearing would have spanned 302 hours or 37.8 days.

The time and expense involved in such an approach would prohibitanyone from volunteering for duty on such a Committee. [103] The approach taken by the Committee was in accordance with the Act and was certainly a reasonable approach in light of theparticular facts of this matter. There was no denial of natural justice on this basis. [50] Saskatchewan also disagrees with the Physician’s argument that the Committee accepted he had performedcomplete assessments as often as he billed for them.

Saskatchewan submits that the Committee found the Physician had billed forcomplete assessments when he had in fact performed other services. [51] Saskatchewan notes that the Physician acknowledged he should have billed under code 5B, rather than code 3Bin many cases. His counsel told the Committee that: … Dr. Amu-Darko acknowledges that those likely did not fall under -- or the majority of those probably would have been as more of amore thorough 5B as opposed to a full 3B, and has now changed his practice to adjust for that billing.

I think it’s commendable that he didn’t change the practice pattern, that he still tries to go into more of a background with more frequent-- I guess not more frequent visits, but more frequent review of a full analysis of the patient from head to toe, and that he continues to doso without billing what was the 3B before is commendable.

With respect to the argument that the more frequent thorough reviews likely limited the amount of follow-up patients and unrelatedmedical issues, I think you can see that in his statistics. As far as I remember, the 3Bs were about 431 percent the mean, but thestandardized cost per patient was only 123 percent of the mean and the total services provided were only 107, so his approach clearlyreduced visits overall that didn’t make him be a significant outlier in total services.

And as he’s mentioned a number of times, he haschanged this practice and has stopped ever since being advised of the differences in the codes and when they can appropriately be billed. (Affidavit, Exhibit CC, Transcript at page 274, lines 10 to page 275, line 16) [52] Saskatchewan argues that the Committee’s bottom-line conclusion was that it could not establish an appropriatereason for the volume and frequency of the Physician’s complete assessments.

In this regard, the Committee determined medicalnecessity as it should and as held by Bardai J. in Colistro, as follows: [24] The Act provides coverage in relation to services that are medically required only. At the hearing, there was some debate aboutwhat the term “medically required” means. Neither counsel was able to point me to any case law that has defined this language. … [25]

Section 49.2(2) of the Act pursuant to which the JMPRC derives its authority states that: 49.2(2) Where, in respect of insured services provided by a physician, it appears to the director that a physician has received or mayreceive from the minister or that a physician has caused or may cause the minister to pay to any person, or both, either directly orindirectly, any amount of money by reason of any departure from a pattern of medical practice acceptable to the committee, he may referthe matter to the committee. (Emphasis in original) [26] The reference to a “departure from a pattern of medical practice acceptable to the committee” indicates a more objective test thanthe one proposed by Dr.

Colistro and that, if there is a subjective component, and I agree that there is, it is the JMPRC’s opinion, beliefand understanding that counts. [27] In this context, “medically required” means a treatment, service, test or supply which is generally accepted by the JMPRC (whichis comprised of multiple physicians representing a number of disciplines) as essential, effective and appropriate in the diagnosis, care ortreatment of a specific medical condition, sickness or injury.

It reflects the level of care and standard of practice the JMPRC expects aphysician to provide based on the healthcare needs of a given patient. Language similar, albeit not identical, to this language can befound in employee health benefit policies within the context of defining medically necessary care.

See, for example: International Unionof Operating Engineers Local 115 v SMS Equipment Inc., (BCLA) at para 31; Kingston (City) v Kingston ProfessionalFirefighters’ Association, (Ont LA) at para 17, and Teamsters (Chemical, Energy and Allied Workers, Local UnionNo. 1979) v McKesson Canada Corporation, (Ont LA). [28] Simply put, Dr. Colistro does not get to define “medically required” within the context of this specific legislation.

It is not hisopinion of what is required that counts. [53] Saskatchewan submits the Committee decided that the Physician provided too-frequent, non-medicallynecessary services to all patients. In making this decision, the Committee considered the Payment Schedule, the statistical profile,evidence at the hearing, and the Committee’s view of medical necessity. This was a decision of mixed fact and law attracting a standardof review of palpable and overriding error.

Partial Assessments [54] Partial assessments are described in the Saskatchewan Health Payment Schedule, at code 5B: 5B Partial assessment or subsequent visit -- includes:

a) history review;

b) history of presenting complaint;

c) functional enquiry;

d) examination of affected part(

s) or system(s);

e) assessment;

f) diagnosis;

g) necessary treatment;

h) advice to the patient; and

i) record of service provided. (Affidavit, Exhibit AA, page N5004) [55] The Committee found the Physician improperly billed for partial assessments (code 5B), by billing for a partialassessment in conjunction with various minor procedures, or a renewal of prescriptions. They decided that the medical records did notindicate a medically necessary reason for the partial assessments: Decision at pages 710-712. [56] The Physician was ordered to reimburse Saskatchewan for 80% of his billings for partial assessments when theywere billed in conjunction with injections and prescheduled minor procedures and 5% of his billings for partial assessments overall. The

Physician argues that the Committee did not explain how it decided on these percentages. [ 57 ] Again, however, in coming to its decision, the Committee reviewed the Payment Schedule, the statistical profile, and evidence at the hearing, to determine medical necessity. Their decision must be reviewed on a standard of review of palpable and overriding error. Decision on reassessments based on frequency of services provided [ 58 ] At the hearing on February 28, 2019, the Committee members reviewed 14 patient files with the Physician.

Almost without exception, the Physician agreed with the observations of the Committee members that he had mis-billed. The following presents, in my view, a typical exchange during the hearing, in relation to a particular patient (edited to remove information that may identify the patient): CHAIRPERSON: So I’m looking at the visit date August 10 th , 2016, and so the objective is B12 deficiency and the assessment is B12 deficiency, and the plan is for B12 injection. This is billed as a 5B.

Now, I note there is a note at the top, “came in for review of lab work.” And if we had good evidence of what that lab work was and what you were talking to this patient about, you could make a case for 5B. As it stands, what it looks like what it should be is a 110A. DR. BERENBAUM: I don’t think an injection was done that day. CHAIRPERSON: Well, it says “for B12 injection,” so I assume there was an injection done. DR. BERENBAUM: Yeah, “for,” as in to have them in the future. CHAIRPERSON: I don’t know. Can you tell us if a B12 was done that day? DR.

AMU-DARKO: She came for a review of lab work, and basically no, an injection was not done that day. We went over the lab work, her B12 was 97, and she wasn’t feeling well. So I give her a prescription for B12 and she was going to come in once she’s got a prescription. CHAIRPERSON: So she was then seen on August 11 th , 2016, for a -- DR. AMU-DARKO: B12 injection. CHAIRPERSON: -- B12 injection. So that one definitely would be -- DR. AMU-DARKO: She went to get a prescription and come back the next day. CHAIRPERSON: So that would definitely be a 110A, not 5B. DR. AMU-DARKO: Okay.

CHAIRPERSON: And then on August 15 th I would say the same thing, and August 16 th same thing. DR. AMU-DARKO:

And these days all my B12s are 110As. CHAIRPERSON: Okay. So 17 th , 18 th , 22 nd . Now, on the 23 rd there’s a B12 injection, it’s billed as a 3B. I’m just wondering what happened there that made it a 3B? DR.

AMU-DARKO: What happened here is that obviously she came in for the injection, and over time I went through what -- you know, basically I went through her systems to make sure that nothing has changed and -- and eventually trying to see if she was getting better from her malaise and lethargy, and as a result I did bill that 3B because I had done -- you know, I thought at the time that I have done everything I need to do because by this time she’s had one, two, three, four, five, six, seven injections -- I think six injections, and whether it was improving anything, as an indication as to whether we need to look for something more than just the B12 deficiency.

CHAIRPERSON: So at best that could be a 5B, but with what we have recorded here I think it’s still a 110A with what you have. Really, the practical information we have is for B12 injection, and then on examination pink and not jaundiced, no clubbing, no lymphadenopathy -- DR. BERENBAUM: The usual questioning. CHAIRPERSON: The usual things there. DR. AMU-DARKO: And yes, again, with hindsight I probably didn’t do it that way. At that time I thought that if I am going to do an examination over the systems and that was -- DR. BERENBAUM: So you -- DR. AMU-DARKO: -- warranted. DR. BERENBAUM: Sorry. DR.

AMU-DARKO: Because obviously if you are treating you want to see that the symptoms are improving. DR. BERENBAUM: And were they? I don’t see where the symptoms are identified. DR. AMU-DARKO: Yes, it -- I mean, it wasn’t really. It wasn’t, and basically the idea was that we will continue. But at that time that’s what I thought, that if you go through that list, you do the examination, you do a full examination, you bill a 3B. In hindsight, that wasn’t -- that’s not what I’m going to do now, but at that time that was the impression I was laboring under. DR.

BERENBAUM: What was your plan for ongoing B12 injections for this patient on this day? DR. AMU-DARKO: Basically now we’re going to move on -- DR. BERENBAUM: Well, not -- on this day? DR. AMU-DARKO: On this day? DR. BERENBAUM:

On this day, August 23rd, you’re trying to assess whether or not -- or what you should do with further B12 injections. So I know you didcontinue them, I want to know how frequently you decided to continue -- DR. AMU-DARKO: Basically, we -- I mean we did continue them on a monthly basis. CHAIRPERSON: A daily basis, actually, I think. DR. AMU-DARKO: Yeah, we did a daily basis, I think, for a while, trying to get it up as much as possible, and then we went on to monthly basis. … CHAIRPERSON: Okay, fair enough. So on page 2309, January 4th is billed another 3B.

Once again the subjective is came [sic] for B2 injection. And Iwould say that that probably -- well, with what I have there, I would say that probably is documented as a 110A, not a 3B. And the same on February 27th, on page 2310, came for a B12 injection.

And again, with the documentation we have, it at best would be a 5B, andprobably still better a 110A. (Affidavit, Exhibit CC, Transcript at page 215, lines 15 to page 220, line 5; page 221, lines 1-11) [59] The Physician claims the Committee’s decision does not explain why a large percentage of his billings forcomplete assessments should have been billed as partial assessments, or not at all, when the Committee reviewed only a fraction of thefiles reassessed.

I understand Saskatchewan to respond that the Committee found problems in a few files that were likely to be found inall files. [60] Saskatchewan did not provide an example, but one might be found in the Physician’s demonstrated lack ofunderstanding during the hearing of the components of a complete assessment. In his testimony, the Physician frequently acknowledgederror in billing for a complete assessment when it was not warranted.

I agree that the Committee could assume that he made the sameerror in the cases not reviewed. [61] In Mitchell v Saskatchewan (Health), 2020 SKQB 334, 97 Admin LR (6th) 35, Tochor J. considered a similarargument, that it was unreasonable for the committee to extrapolate its findings in a few cases to the physician’s entire billings. Tochor J.found that it was reasonable to do so: [84] Dr. Mitchell, in this ground, argues the Committee’s reassessment was unreasonable because it applies findings from a small,select, sample of patient records to her entire billings in a category.

She argues the Committee’s extrapolation of such findings to herentire billings was made without proper regard for her explanations given at the interview, and that the Committee did not provide ajustification for this extrapolation. [85] The Minister argues the decision incorporated her interview testimony in certain respects and that a tribunal, like any court, mayaccept all, part, or none of the evidence of a witness.

He points to earlier case authorities where a committee’s exercise in extrapolationwas upheld, and submits this specialized tribunal reached a reasonable decision in this regard. [86] A long line of cases has found the Committee’s decision to reassess billings in this manner to be reasonable. An importantillustration is found in Offiah [2011 SKQB 227, 379 Sask R 186] at para 77: [77] … The appellant asks that the court substitute a different payment

schedule for the partial assessment in relation to nursinghome visits. The Committee’s decision in this regard could reasonably be supported by the evidence. The criteria for this Court, onappeal, is not to determine whether the reassessment was the best reassessment, but rather whether there was an error in law and whetherthe decision can reasonably be supported by the evidence.

Saskatchewan jurisprudence, in many cases, has rejected the suggestion thatthe Committee must demonstrate a mathematical foundation for the reassessment. (Ramsahoi, supra [Ramsahoi v Saskatchewan(Minister of Health) (1990), (SK KB), 85 Sask R 42 (QB)]; Anstead v Joint Medical Professional Review Committee,2006 SKQB 221, 280 Sask R 83; Demkiw-Bartel v Joint Medical Professional Review Committee, 2010 SKQB 325, [2010] SJ No 793(QL).

This is a matter to which this Court is obliged to give deference to the Committee. [Emphasis added in Mitchell] [87] Similarly, in Ramsahoi v Saskatchewan (Minister of Health) (1990), (SK KB), 85 Sask R 42 (QB) it was heldat paras. 43 and 47: [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 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 [Datta and Barsoum v M.C.I.C. (1986), (SK CA), 52 Sask R 18 (CA)] case. The majority of the Court of Appeal found no merit in the argument, based on the legislation in forcein 1986.

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 the

committee on a global, rather than case to case basis. … [47] … Like any appeal court, I should not substitute my assessment of the facts for that of those who heard the evidence,providing that these facts are reasonably supported by that evidence.

This is an important consideration in a case such as this, where thelegislative intent is that the primary responsibility for reassessment lies with a committee of professional colleagues. [Emphasis added in Mitchell] [88] See, to the same effect: Minhas [(1992), (SK KB), 102 Sask R 171 (QB)] at paras 20-22; Anstead v JointMedical Professional Review Committee, 2006 SKQB 221 at paras 58-59, 280 Sask R 83; and Belak at paras 102-103. [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. [62] The Committee applied the Physician’s evidence to the Payment

Schedule and found he had not performedcomplete assessments in the cases they reviewed. [63] The Committee’s decision to reduce the billings for complete assessments to partial assessments, and to recoverthe billings for complete assessments associated with prescheduled injections and minor procedures, were decisions of mixed fact andlaw. I find that their conclusions were available on the evidence before them. [64] I disagree with the Physician that the Committee read temporal limitations into the Payment Schedule.

TheCommittee said that a complete assessment is appropriate annually, or “when the medical necessity or complexity of the clinicalcondition” requires a more thorough assessment (Affidavit, Exhibit T, page N705). Had the Committee limited complete assessments toonce annually, I would agree with the Physician that the Committee was adding a requirement to the Payment Schedule. However, I donot accept that the requirement of medical necessity or complexity is an addition to the Payment Schedule. [65] The Physician argues the Committee ignored his rationale for performing more complete assessments than hispeer group.

I note, however, that the Physician did not relate this rationale to the 14 specific files reviewed by the Committee. Moreover,his peer group is made up of rural physicians in solo practices who would be serving a similar demographic. [66] The Physician charges for far more complete assessments than his peers but his overall billings for the ReviewPeriod are close to average.

By not mentioning his rationale, the Committee appeared to view it as irrelevant to the question before them:did the Physician receive payment “by reason of any departure from a pattern of medical practice acceptable to the committee” (SMCIA,s 49.2(2)). I accept that it was reasonable for the Committee to so conclude. 2. Did the Committee improperly impose reassessments for inadequate documentation? [67] The Committee found that the Physician did not adequately document the reasons for performing completeassessments, partial assessments, or for counselling (codes 40B and 41B).

In other words, the Committee determined that the Physiciandid not document that he had performed all the constituent elements of codes 3B, 5B or 40/41B of the Payment Schedule. [68] In this regard, the Committee stated as follows: Generally speaking, the following issues were noted throughout the medical records reviewed by the Committee: • Pertinent family history and patient history: ○ At times, although there were family and patient histories documented in the medical record, these appeared to be related to theEMR templates automatically pre-populating this information each time a complete assessment was billed. ○ The Committee could not ascertain whether or not that information was reviewed or obtained at that particular patient encounter,as it would not have been clinically relevant or indicated within the context of the presenting complaint. • History of presenting complaints and functional inquiries: ○ Briefly documented or no documentation at all making it difficult to confirm medical necessity. • Examination of all parts and systems: ○ There was rarely documentation to support that all parts and systems were examined, as required by the billing criteria; ○ There was questionable documentation that did not appear to be relevant to the presenting complaint, such as in the case ofpatient’s presenting with ear wax, but there was documentation of chest and abdominal examinations. ○ There were inadequate documentation in the physical examination relevant to the presenting complaint, such as a patient with acomplaint of vertigo and dizzy spells in the context of a URTI/otitis media and taking antibiotics, with a documented physical

examination simply stating “ears clear now”. • Necessary advice to the patient: ○ The vast majority of the plans were lacking documentation with inadequate or no medication dosages or lengths of prescriptions documented, and inadequate or no follow-up instructions, such as when the patient should return to the office or what the patient can expect during the course of the illness. … In the vast majority of medical records reviewed, there were several components of the partial assessment inadequately documented, not documented at all and/or lacked important clinical content that would establish and justify the medial necessity of the visit.

In many cases, it was difficult to determine or justify the medical necessity or intent of the visit due to the inadequate documentation. Physicians are expected to document each patient visit in accordance with accepted standards of care and guidelines for medical record- keeping, which align with the Physician Payment

Schedule billing requirements. … It was established during the interview and through review of the records that the frequency of counselling services could have been better managed. There were many examples of repeated counselling visits within a short duration of time for what appeared to be the same reasons (ie: newly diagnosed celiac disease) or repeated visits to discuss general ‘health issues’ and ‘progress made’, but little else documented in the medical record to support the frequency or medical necessity of these visits.

There was no documentation of a plan or targeted follow-up instructions to determine how often the patient was instructed to return to the clinic for counselling sessions, especially in cases where there did not appear to be a specific clinical concern. (Affidavit, Exhibit T, at page N709, N711 and N712) [ 69 ] The Physician claims the Committee erred by setting a standard of competency for documentation beyond what is required in the Payment Schedule. For instance, he argues that the Committee read into the Payment

Schedule that a complete assessment (code 3B) is only appropriate for periodic annual health exams, a matter I addressed earlier. [ 70 ] Further, the Physician submits that the Committee read in a requirement that the Physician document follow-up management and instructions on subsequent visits, when it held as follows: There were many circumstances where the medical record lacked documented patient instructions in regards to follow-up or subsequent visits.

The billing requirements of a partial assessment (5B) include “necessary advice to the patient” to include follow-up instructions, which should be provided so patients are only returning to the clinic when it is medically required to do so. Dr. 0171 indicated on many occasions that patients had ‘open’ access to his clinic and the reasons for patients returning to the clinic was not being managed.

Although it is important that patients have access to their physician in a timely manner, it is equally as important that physicians manage this access appropriately. (Affidavit, Exhibit T, page N710) [ 71 ] The Physician asserts the Committee reassessed 5% of the counselling billed (codes 40/41B) because of inadequate documentation, although there is no requirement under codes 40B or 41B for such documentation. The Committee held as follows: It was established during the interview and through review of the records that the frequency of counselling services could have been better managed.

There were many examples of repeated counselling visits within a short duration of time for what appeared to be the same reasons (ie: newly diagnosed celiac disease) or repeated visits to discuss general ‘health issues’ and ‘progress made’, but little else documented in the medical record to support the frequency or medical necessity of these visits.

There was no documentation of a plan or targeted follow-up instructions to determine how often the patient was instructed to return to the clinic for counselling sessions, especially in cases where there did not appear to be a specific clinical concern. (Affidavit, Exhibit T, page N712) [ 72 ] Saskatchewan asserts that the Committee is required to determine whether the Physician met the required documentation standard when considering whether a medically necessary service was performed as described in the Payment Schedule.

When the Committee was unable to make these determinations, it requested the Physician to attend for an interview. In its final decision, the Committee found it could not identify whether a medically necessary service was performed. Decision on Documentation [ 73 ] An example, typical of the patient files reviewed by the Committee, is found at page N3004, where the patient record for February 3, 2016 shows: S [subjective]: anxiety and stress O [objective]: A [assessment]:

counselling P [plan]: Ativan 25min (Affidavit, Exhibit Y) [ 74 ] The Physician testified about his recollection of this patient. A Committee member responded: DR. CORNELISSEN: So that’s an isolated piece of information where we have to make -- where we have to make a decision on what happened during that counselling session, and from what you wrote there, we have no clue what the issue with this patient is. He [ sic ] have no clue what decisions you’ve made for this patient, what follow-up arrangements you’ve made for this patient, what medication, we don’t have a clue.

All we know there is the patient has stress and you gave her Ativan. How much Ativan? We don’t know. (Affidavit, Exhibit CC, page 224, lines 21 to page 225, line 8) [ 75 ] The Physician asserts that the Committee penalized him for poor documentation twice: when reviewing the medical necessity of the service and when reviewing his compliance with the documentation requirements in the Payment Schedule. I disagree. [ 76 ] When the Committee found a patient record to be inadequate, the members questioned the Physician to determine the medical necessity of the service provided.

The Committee found that the Physician did not satisfy the requirement of medical necessity in his comments during the interview.

Consequently, the Committee penalized him for his inaccurate record-keeping because the information in the patient file did not correspond with the billing, and for his inability to demonstrate medical necessity for the service performed. [ 77 ] In the September 24, 2019 Letter, the Committee chair reiterated and clarified their position as follows: The Committee would like to reiterate and clarify that ‘medical necessity’ based on the patient’s clinical condition is only one aspect of adequate documentation and the documentation reassessment was not based solely on lack of medical necessity.

All other components of the billing code must be adequately documented as well. In the vast majority of medical records reviewed by the Committee, there were several components of the complete and partial assessment which were inadequately documented or not documented at all. Again, the Committee has not disregarded the explanations provided by Dr. 0171 during the interview. (Affidavit, Exhibit S, page N700) [ 78 ] The Committee agreed with the Physician to move certain language describing the criteria for a partial assessment from their reasons for the reassessment to the Education and Recommendations

section of the final decision. The Physician argues that the Committee should have amended their final decision to reduce the 14% recovery of partial assessments billed during the Review Period. However, I do not find that the amendment suggests the Committee recognized it had used an expanded view of the criteria for a partial assessment. [ 79 ] Finally, the Physician asserted that the Committee erred in law by referring to a Payment

Schedule with stricter documentation requirements, which was not in place until after the Review Period. However, Saskatchewan submits that the Payment Schedule, in effect as of October 1, 2015, includes “Documentation Requirements for the Purposes of Billing”. The document reads in part: Introduction 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. Requirements Visit Services: • All service code criteria must be recorded. … (Minister of Health Brief of Law, Exhibit A) [ 80 ] While the Committee refers in its Decision to the April 2017 Payment Schedule, which was implemented after the Review Period, the documentation requirements were the same as in the October 2015 Payment Schedule. Moreover, in the September 24, 2019 Letter, the Committee Chair confirmed the Committee had relied on the October 1, 2015 Payment Schedule: Affidavit, Exhibit S, page N700. [ 81 ] In Michel v The Joint Medical Professional Review Committee , 2019 SKQB 209 , Barrington-Foote J.A. ( ex

officio) (as he then was) commented upon the records requirement when a doctor is requesting payment: [38] The answer to the question of whether and to what extent the Committee was entitled to reassess Dr. Michel based on thelegibility and content of his documentation begins with the standard of review. … That review must consider not only the language ofthe payment schedules, but the purpose of the s. 49.2 of the Act [The Saskatchewan Medical Care Insurance Act, RSS 1978, c S-29] peerreview process.

To reiterate, as Baynton J. said in Huerto [(1994), (SK KB), 124 Sask R 21 (QB)] (at para 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. … [39] These principles, taken together, support the conclusion that it was open to the Committee to conclude, as did Dawson J. inOffiah [2011 SKQB 227, 379 Sask R 186] (at para 64) that: …In respect of documentation…the "billing aspect" of the pattern of a medical practice is defined by the payment schedule…[and]…theCommittee is entitled to examine whether the physician performed all of the constituent elements set out in the payment schedule, whichin some cases includes a record requirement.

I also agree with Dawson J. that the specific language used in the billing code matters, and that different phrasing of the recordsrequirement for different services indicates a different meaning. [40] However, the fact that the Committee can examine whether the physician has created a record of services provided does notmean it would be reasonable for the Committee to find, for example, that the record for every partial assessment must include a detailedhistory review, detailed history of the presenting complaint, detailed results of a functional inquiry, and a detailed description and resultsof the examination.

A requirement of that kind would, in effect, mean that the payment

schedule requires that this component of theservice must be performed to a certain standard. Such a record requirement would not accord with the object of the review, which is todetermine if the billing aspect of the pattern of medical practice is acceptable. [41] Counsel for the Minister effectively conceded this point. When pressed as to whether the

interpretation proposed by the Ministerwas too onerous to be workable, she submitted that a very brief entry in the record for a simple service – such as “car accident a year ago,knee sore, prescribed T3, told her to stay off it” – would be sufficient. A record of that kind would not explicitly refer to each of theseven “services” listed under a 5B.

Nor would it provide detailed information about those components of the service that were explicitlyreferred to. [42] It would also be unreasonable to interpret the requirement for a “record of services provided” to require a record that enabled theCommittee to serve purposes other than assessing the billing aspect of the physician’s pattern of practice, such as competence or whetherprofessional standards have been met. … [43] The Minister has also submitted that the medical record must be both legible to the Committee and sufficient to enable theCommittee to carry out its audit function by assessing medical necessity and frequency.

He argues that the records requirement in thepayment

schedule should be interpreted in a manner that achieves that purpose, and, as a corollary to that proposition, that the Committeecan reassess if it is not satisfied, based on the record alone, as to medical necessity and frequency. [44] I do not read the Decision as reflecting this line of reasoning. Regardless, and with respect, I do not agree. The payment schedulelists medical services for which a physician is entitled to be paid. The creation of a medical record is a component of a 3B or 5Bassessment.

The purpose of those medical services, including the record, is not to serve the needs of the Committee by demonstratingmedical necessity or justifying frequency in the context of a peer review. That is so despite the fact that those records are used in theassessment process. In my view, it would not be reasonable to interpret the requirement for a record of medical services through the lensof the audit function in the manner suggested by the Minister. (Emphasis added) [82] I find that the Committee did not do what Barrington-Foote J.A. cautioned against, which is to apply its ownview of medical necessity.

Rather, I accept that the Committee reviewed the records to determine whether any medical necessity wasrecorded. [83] In Malhotra v Joint Medical Professional Review Committee, 2022 SKQB 124 [Malhotra] Crooks J. noted that: [59] … The record of service is intended to reflect the elements of the Payment

Schedule in some form. While the specific content of thePayment

Schedule may venture into an assessment of competence, a record of service must reflect the elements referenced in thePayment Schedule. (Emphasis added) [84] I am satisfied that the Committee made its decision to reassess for inadequate documentation because therecords reviewed by the Committee did not “reflect the elements referenced in the Payment Schedule”. The Committee’s decision wasreasonable in the circumstances. 3. Did the Committee improperly impose an additional amount of $15,000? [85] Pursuant to s. 49.2(7) of the SMCIA, the Committee assessed $15,000.

The Committee explained why it did so,as follows: Physicians are an essential stakeholder in publically-funded [sic] health care expenditures and must jointly assume accountability and

responsibility for the resources and overall process associated with performing billing investigations, monitoring compliance and enforcement activity. A fee-for-service system based on trust, honesty and integrity is at high risk of fraud, waste, abuse, and misuse of publically-funded [ sic ] resources.

Accountability relies on both the physician and the Ministry of Health to safeguard public resources to ensure that health care dollars are being spent in a responsible manner and that payments made to physicians are appropriate and align with the regulations and policies established in The Medical Care Insurance Act , the Physician Payment Schedule, and the Direct Payment Agreement. Furthermore, physicians must share the responsibility and stewardship of ensuring that erroneous and/or inappropriate billing does not unnecessarily increase costs to the publically [ sic ] funded system.

When health care monies are inappropriately paid to physicians, it prevents efficient and effective allocation of health care dollars to areas where patients and the health care system may really need it. (Affidavit, Exhibit T at page N717) [ 86 ] In the September 24, 2019 Letter, the Committee Chair wrote as follows to the Physician, further explaining why the Committee decided to assess the additional amount of $15,000: With respect to your comments regarding the additional amount of $15,000 being “arbitrary”, the Committee would like to clarify that careful consideration went into developing a fair and reasonable amount which reflects a portion of the Committee members expenses and costs expended during the course of a physician’s review.

These components include: Preparation for each aspect of a physician’s review including review of the initial profile, reviewing the physician’s submission of records and other information, preparing for the interview, reviewing the case in its entirety in order to arrive at an appropriate, reasonable and fair reassessment, reviewing draft documents and legal counsel comments, travel and accommodations, and time away from our clinical duties and providing patient care. (Affidavit, Exhibit S at page N701) [ 87 ] As held in Malhotra , at para 166 , the awarding of an additional amount under s. 49.2(7) is a discretionary decision.

In Abrametz v Law Society of Saskatchewan , 2020 SKCA 81 , the Court of Appeal described the standard of review for an exercise of discretion as follows: [74] … A deferential standard also applies to discretionary decisions, in which an appellate court will intervene only if the decisionmaker erred in principle, misapprehended or failed to consider material evidence, failed to act judicially, or reached a decision so clearly wrong that it would result in an injustice … [ 88 ] I agree that the Committee assessed the additional amount to encourage compliance with the SMCIA and the Payment

Schedule and in doing so did not err in principle, misapprehend or fail to consider material evidence, fail to act judicially, or reach a decision so clearly wrong that it would result in an injustice. Conclusion [ 89 ] The Physician’s appeal is dismissed, with costs to Saskatchewan. J. J.E. McMURTRY