Features Op-Ed
Proposed Ontario clinic regulation – An alternative

The “Working Group” cited concerns of practitioner exploitation, insurance fraud, using unregulated assistants, businesses maximizing billings, generating misleading advertising, providing insufficient infection control, poor record keeping maintenance and violating Health Information Custodian rules under privacy legislation.

The Working Group expressed the need to extend authority of regulators beyond their members to the employers/businesses that employ or contract practitioners to ensure the mandate of public protection. This Group made it clear the proposed regulation was not initiated by government, but the involved regulatory bodies felt compelled to act on what they perceive in the associated professions as insidious, systemic problems.

The Working Group produced a webinar, and surveyed practitioners and public through the Ontario Clinic Regulation website. While no health professional in good conscience and ethical application would condone the infractions cited by the Working Group, many practitioners expressed concerns in the survey about additional bureaucracy and operating costs borne by practitioners and passed on to patients.

Based on stakeholder submissions featured on the Ontario Clinic Regulation website, many professional associations acknowledged problems exist but suggested an additional regulatory body was a duplication of existing authority. Some suggested imposing such additional oversight would render existing models of self-regulation as impotent in the public eye.

Although the Working Group may not have received the support they were looking for, it stands that the regulators and practitioners are still faced with the same problems addressed in the proposal. Shared problems across professional lines may present a real opportunity for the various health professions to open dialogue and enact solutions far-reaching and professional-culture changing. It’s clear the varied professions require not merely what amounts to an increased “police presence”, but deep professional-cultural changes that address these systemic problems head on.

Problems with the proposal
Practitioners and health professional associations responding to the survey cited a number of problems with the proposal. The biggest objections were to concerns of duplication of regulation, and that inspections could not possibly remain cost-neutral and therefore borne by the businesses and their practitioners.

RMTAO board chair Krystin Bokalo, in a January 19, 2016, letter to the Ontario Clinic Regulation Working Group stated, “We have been assured that clinic regulation will be performed on a cost-recovery basis. However, as in any marketplace the costs of the clinic inspection process will be passed down to the individual practitioners in the clinic, and therefore financially impact the individual members of the profession.” The RMTAO position paper provided a number of constructive recommendations to the Working Group regarding how proposed regulations could be structured to allow fair time for self-correction by practitioners.

Many associations expressed concerns that such regulations may entice employers to hire unregulated practitioners to provide services. A number of colleges (primarily the gatekeeper professions) were glaringly absent from the Working Group, as were a number of gatekeeper health professions and insurers as a key participant in preventing fraud.

Associations uniformly asked the Working Group to provide evidence regarding the depth and breadth of the problem, so the benefits of imposing such regulations could be measured. Associations suggested regulatory bodies express their full authority, and cooperate with agencies empowered with existing laws that address fraud, worker mistreatment and criminal behavior. Strongly, a number of associations expressed concerns for overly onerous regulation interfering with existing and emerging legitimate business models not fitting the definition of “clinic.”

In the webinar provided by the Ontario Clinic Regulation Working Group, one of the panelists suggested businesses have “no duty, no responsibility” to patients. The panelist appeared to argue only regulation could ensure ethical business practices, and that business owners weren’t to be trusted. It’s unclear if the Working Group approached any employers first to discuss the problems before proposing such regulation.

Problematic professional culture
Many critics suggest the proposed Ontario Clinic Regulation would be duplicative, expensive, restrictive and ultimately ineffective to capture those gaming the system. Professional isolation, negated communication and a paucity of collaboration across the regulated health professions have created fertile ground for corruption, abuse or just plain inefficiencies.

Broad-reaching change to any professional culture can only happen when we put knowledge, skills and tools into frontline practitioner hands, and support them in implementation. Here are some ideas within the massage therapy profession to make it more difficult for fraud, exploitation and inefficiencies to get a foothold.

1. Create a comprehensive contract
Massage therapists are among a number of regulated health professionals that work as contracting “freelancers,” tenants under a larger business, or employees. Cross-contamination of the different working arrangements is common in our profession, and creates confusion, tension and corruption of business models, as well as risk of misclassification by Canada Revenue Agency.

The solution? Ask regulatory colleges and professional associations to hire legal counsel to draft employment, tenant and contractor/freelancer contracts, complete with all provisions regulated health professions must adhere to. Financial compensation, hours of employment and other non-regulatory variables specific to the common employment contract would be added as an addendum to further define the relationship.

Employers are already complicit in privacy legislation and mandatory reporting – if their employed regulated health professionals demonstrate incompetence, incapacity or abuse. A common contract containing all regulatory requirements legally bind both practitioners and the employers they work for, extending regulator influence beyond the practitioners they regulate.

2. Increase training and self-agency in contract negotiations
Increase the rigor and scope of business training for massage therapists, including contract law, negotiation skills and accounting. Incorporate a mentorship and support infrastructure to assist practitioners at entry-level practice. Provide training for both practitioners and their employers to ensure understanding and adoption of the common contract. By charging fees for both mandated training and contract copies, regulators and associations would recoup the initial cost of drafting the common contract and in fact could see a profitable gain in their operating reserves while at the same time dramatically affecting the confusion and corruption in their particular professions.

3. Enable extra levels of accountability
All regulated practitioners and the businesses they work for would use these contracts exclusively for their members entering into any work contract. Audits would be conducted by existing Quality Assurance programs to ensure contracts were in place and practitioners and employers had both completed training (think health and safety provisions required in the restaurant industry). Non-compliance would be illegal for both regulated health professions and their workplace owner/operators, and subject to fines and penalties. Regulated health professional hotlines – in conjunction with existing fraud hotlines and reporting mechanisms for incompetence, incapacity or abuse ¬– would be set up to report violations. No additional examiners, legislative Act or oversight body would be required and practitioners and their employers would experience mutual obligation, reducing the likelihood of either violating these provisions.

Insurers would finally be handed their fair share of responsibility in dealing with insurance fraud. All receipts would require double signatures (practitioner and patient), and insurers would cross-check all provider receipts against regulatory registries. Insurers would provide claimants with annual statements of services received for the claimant to cross-check against fraudulent billing, and would share data with the regulated health professions re: utilization of services, costs and cases of fraud examined. This would include employee benefit plans, auto insurance and WSIB so insurers and providers could work together nationally against insurance fraud and corruption. Insurers must be prodded to do their part in supporting health professionals in preventing fraud.

Gatekeeper health care professionals can make themselves more accessible to cross-profession collaboration on treatment plans, and provide clear referrals citing desired clinical outcomes. Currently gatekeepers may placate workers requesting prescriptions to access their employee benefits without additionally communicating with the off-site provider who provides the services. More cross-professional communication would ameliorate many problems.

4. Strengthen advocacy for health-care professionals
Interested professional associations could instal a regulated health professional’s legal representative as an extension of membership services, extending member support through advocating workplace and professional standards and providing legal services for a reasonable fee.

A clear set of contractual expectations, sufficient training, reporting and auditing mechanisms could be put in place with a simple expansion of existing regulations, standards and quality assurance procedures for an effective roll-out plan.

Rather than layering on more regulation, there’s an opportunity to increase cross-professional dialogue and engage the strength of existing regulators and legal processes already in place. Coupled with improved practitioner training and support, employer engagement and a comprehensive tool – the health professional contract – we can address this insidious professional problem as a fully embodied self-regulating profession while strengthening our relationships with other regulated health professionals.

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Donald Q. Dillon is a practitioner, author and adviser to massage therapists. Find him at DonDillon-RMT.com