Canada: Alberta Sunshine List Expanded To Include Physicians

In what is promised by the Government of Alberta to be "the most comprehensive disclosure of physician payments in Canada," Alberta released regulations on physician payment disclosure on September 9, 2020.

Under the Alberta Health Care Insurance Act (AHCIA), the Physician Payment Disclosure Regulation requires the Minister of Health to disclose all amounts payable to a physician for insured medical services rendered on a "fee for service basis" commencing on fiscal years ending March 31, 2018. In particular, the Regulation grants the Minister the discretion to disclose:

1. the name of the physician;
2. the location in Alberta where the physician provided the majority of the insured medical services in respect of which the amounts were paid during the fiscal year;
3. the area or areas of medicine in which the physician has received a specialist training and in which the physician provided the insured medical services in respect of which the amounts were paid;
4. the total number of individual patients, excluding repeat visits by those patients, to whom the physician provided the insured medical services in respect of which the amounts were paid during the fiscal year;
5. the total number of days during the fiscal year on which the physician provided the insured medical services in respect of which the amounts were paid; and
6. the name of any organization to which an amount was paid and the total amount paid to each of those organizations during the fiscal year.

Subject to certain exemptions, the release of this information should occur on or before November 9, 2020. Of interest to physicians, the AHCIA and Regulations contemplate an exemption mechanism for those who want to have their names removed from this sunshine list: the Minister may, on application by a physician, exclude information from disclosure if the Minister is of the opinion that: (i) the disclosure could "unduly threaten the safety of the physician"; or (ii) other criteria established by the regulations are met.

As no other criteria have been established, in order to obtain an exemption a physician will be required to establish that the release of their payment information could unduly threaten their safety.

Unfortunately, no further details have been provided by the Government of Alberta with respect to how this standard can be met in the context of the AHCIA. That said, the Public Sector Compensation Transparency Act (PSCTA) provides a similar exemption to public sector employees whose compensation is subject to disclosure under that statute. Interestingly, concerns regarding the government releasing fee for service information for physicians were voiced by all parties in the Hansard for the PSCTA when it was passed in 2015. It was agreed in the debate leading up to the passing of the PSCTA that appropriate regulations would be put in place, with consultations with doctors, to ensure that this payment information was not disclosed. However, the government has changed, and so has its approach to this issue.

The following excerpts from the government's Exemption Policy with respect to the PSCTA may potentially provide some guidance in the context of the exemption available for physicians:

• the person has long-standing harassment, spousal abuse, or stalking issues; or
• the person has received specific and credible threats against their personal safety where the disclosure could be linked to the threat.

Generally, exemptions are less likely to be granted when:

• a potential threat appears to be purely speculative;
• it is unlikely that compensation disclosure will contribute to the inherent safety risks a person already faces in their position;
• the person is merely opposed to the concept of compensation disclosure; or
• the person's name is already published on an employee list, particularly where the organization's salary ranges are also public or readily accessible.

The courts have commented on the application of a similar government directive under the predecessor to the PSCTA. In Jane Doe v Alberta (Deputy Minister of Executive Council), an Alberta Crown prosecutor sought the exemption, on the grounds that her job as a Crown prosecutor was dangerous, among other reasons. The Minister reviewing the case stated that in order to qualify for the exemption, an applicant must show a causal link between the publication of the salary information, and a threat to the individual's safety. The Minister denied the exemption on the basis that there was no link between the publication of her salary and an undue threat to her safety. The trial judge held that the Minister's decision to deny the exemption was reasonable. In doing so, the trial judge stated that the onus to show a concern for personal safety cannot be so low as to be a bare possibility of a threat to their personal safety but also cannot be impossibly high as to defeat the intention of the exemption.

Although the Alberta Medical Association has advised its members that it is continuing to work with the Government of Alberta on this issue, the Regulations nevertheless require the government to release physician payment information in several weeks. Accordingly, please contact the authors or members of our Privacy and Data Protection group with any questions that you as a physician may have regarding the Regulations and the potential disclosure of your financial information.

Originally published by Bennett Jones, September 2020

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