CLEAR News - Winter 2001

College and Ministry of Health Argue Before Court


The College of Audiologists and Speech Language Pathologists of Ontario (CASLPO) and the Ontario Ministry of Health and Long-Term Care presented arguments before the Ontario Superior Court of Justice on November 27, 2001 in what has been described as an unprecedented legal dispute. At issue is whether the practitioners regulated by the College will be able to maintain their self-regulated status currently granted to 23 health professions ( ) under the Ontario Regulated Health Professions Act (RHPA).

On August 13, 2001 the Ministry implemented a new system of coverage for hearing tests covered by the Ontario Health Insurance Program (OHIP). The Physician Services Committee, a group of experts from the Ontario Medical Association (OMA) and the Ministry recommended the system of coverage. This followed an August 9, 2001 press release in which the Minister of Health, Tony Clement stated that "the Physician Services Committee makes a thorough examination of OHIP fees and services and recommends ways to keep it up to date. Their on-going work has kept OHIP current, and has made possible the availability of medical procedures that are more advanced and less invasive." According to the President of the OMA, Dr. Kenneth Sky, "Physicians are concerned with ensuring and maintaining high quality audiology services and that health care dollars are effectively spent, so that patients receive the most necessary care in a timely manner." The estimated savings to OHIP through the change in service is $25 million annually (Canadian) according to a Ministry spokesman.

The new OHIP rules require that audiologists be employees of physicians in order for the diagnostic hearing tests they provide to be covered by OHIP. However, the public can access these services directly from audiologists if they pay for them out of pocket. In a statement, Delmer Maize, President of CASLPO said: "These rules are totally unnecessary from a public interest perspective. There is no risk of harm to the public. Audiologists are hearing health care specialists. It makes no sense for their work to be supervised by physicians, who for the most part, have less training in audiology than audiologists."

On July 5, 2001 David Hodgson, Registrar, CASLPO, had sent a letter to Minister Clement requesting a meeting "to discuss opportunities to rectify the barrier to audiology testing services that has been created." In his letter Mr. Hodgson stated that "Clearly, the thrust of these new regulations is to reduce OHIP costs. However, the impact of these regulations will be to significantly impair public access to audiology services, to disenfranchise audiologists from their right to practice independently under the Regulated Health Professions Act (1991) and The Audiology and Speech-Language Pathology Act (1991), and to entrench public funding gatekeeper function for a much smaller group of physicians." Furthermore, he said, "There will be long delays in accessing diagnostic hearing tests. Many patients who cannot afford to pay privately for any kind of testing will go without. From a public policy perspective, it is unacceptable that such a vulnerable group will be denied access to publicly funded testing; testing that is essential for accurate assessment and decisions about the need for amplification. It is anticipated that serious conditions may be missed resulting in increased burdens on the health budget in the future."

On July 11, 2001 Mr. Hodgson sent a second letter to Minister Clement stating that CASLPO "had been forced to take the unprecedented action of commencing proceedings against the Ministry for relief from the restrictions placed on audiologists in the practice of their profession and the restrictions on the public from accessing their services."

Subsequently, CASLPO petitioned the court to join a suit filed by individuals and hearing loss associations. CASLPO argued that they were in a unique position to represent the public and the rights of audiologists to practice autonomously. The Ministry of Health and Long-Term Care argued that CASLOP'S intervention was beyond their statutory authority.

On November 13, 2001 the court ruled that CASLPO could participate in the challenge to the new OHIP rules affecting the provision of diagnostic hearing tests and was granted the right to present oral arguments on November 26 and 27, 2001.

The basis of CASLPO's argument as presented, is that the rule changes restrict the audiologists' rights to practice independently and will severely restrict public access to these medically necessary services. And, "these restrictions are not based on medical necessity and represent instead an infringement on the rights granted to audiologists under the Regulated Health Professions Act in order to control OHIP costs." The argument was also presented that the action to deny access to the hearing tests was in fact a violation of Charter of Rights which guarantees basic rights to the citizens of Canada.

The Ministry argued that to overrule the recent changes would restrict their ability to properly administer OHIP and to control costs for all persons receiving care under OHIP. It was also argued that there was no contravention of the Charter of Rights and that no person was being denied access to diagnostic hearing tests.

The decision is now in the hands of the court and may have ramifications for other Colleges throughout Canada and the provision of various services. Furthermore, the outcome could effect the interpretation and administration of the important Regulated Health Professions Act. We will report on the outcome of the case at a later date.

Related Links:
College of Audiologists and Speech Language Pathologists of Ontario

Ontario Ministry of Health and Long-Term Care

Part of this Ministry is The Health Professions Regulatory Council charged with advising the Minister on professional regulatory matters, including changes to RHPA.