To: All members of Ontario’s Anesthesiologists – a Section of the OMA
From: Executive Committee of Ontario’s Anesthesiologists – a Section of the OMA
Subject: Tentative Physician Services Agreement (TPSA)

 

Dear Colleagues:

The executive committee of Ontario’s Anesthesiologists, a Section of the OMA, has a proud history of leadership and advocacy on behalf of Anesthesiologists in matters pertaining to Provincial and National medical politics. We believe that the statement below continues in that tradition and urge all of you to read it in full.

The OMA website has extensive information regarding all aspects of the tentative agreement as well as several FAQs. They can be found here: https://www.oma.org/Member/Resources/AgreementCentre/Pages/Tentative2016PSA.aspx

We encourage all of you to read this information and familiarize yourself with its contents prior to casting your vote. The OMA is currently organizing a general meeting to vote on the TPSA and we are unsure of the mechanisms for exercising that vote. Whatever the voting options will be, we strongly encourage all members to vote by whatever means are possible so that the voice of our Section is strongly heard.

All members have had the opportunity to learn about the TPSA through roadshows, webinars and telephone town halls. Your Chair and Tariff Chair, along with other Section and District chairs, met with the OMA leadership to hear about the TPSA, discuss the pros and cons and ask questions. The full executive had a teleconference with Dr. Scott Wooder, one of the lead negotiators, Dr. Virginia Walley, our president, and OMA legal and economics staff on Monday, July 25 so they could do the same. Finally, the entire executive met and debated, at length, the merits and risks of the TPSA.

After significant consideration and a challenging deliberation, your Executive recommends that you vote in favour of the TPSA.

Please don’t stop reading here.

It is important that you understand why we make this recommendation so that you can decide for yourself how to vote. This analysis is long and balances the pros and cons.  This is an important decision that will affect our economic and professional future for the next 4 years.

We are aware that many OMA constituents feel disappointed with the TPSA, the government, and with the OMA itself.  Frankly, we too were rather disappointed with the TPSA, it is far from perfect. Additionally, we too are dissatisfied with the events of the last two years.  We believe communication and engagement from the OMA requires reconsideration and that there is need and opportunity to ensure that grassroots physicians feel represented and have opportunities to be heard. We are all somewhat disillusioned and damaged by the last few years of unilateral action, discounted fees, physician marginalization, stagnancy of the healthcare system and the uncertainty in our professional lives.  In that context, we have given very careful consideration to the questions and comments you have posed to us as well as to those circulating on social media and other forums.  Unfortunately, some of what is out there is also colored by editorialization, partisanship, misinformation and conspiracy theories and needs to be critically assessed by the reader. This has been a very emotive issue and we felt it important to assess the concerns and questions prior to issuing our recommendation.

Make no mistake; we feel this contract is less than ideal for both Ontario’s Anesthesiologists and Ontario’s physicians.  We were hoping for reversal of unilateral actions and for a PSB without a cap.  However, we unanimously believe that rejecting this contract would put us at far greater risk than accepting it does and therefore we recommend ratification of the TPSA. We consider this contract a bridge to allow our charter challenge to wind its way through the courts and to mitigate further damage until our next negotiation, hopefully, with a positive court judgment that directs a process that better protects our constitutional rights, including binding arbitration. In exchange for our agreeing to a fixed Physician Services Budget (PSB), we were able to extract other concessions as outlined below.

We have no reason to believe that the MOHLTC, under the current provincial government and economic climate, can or would offer additional resources to the Physician Services Budget (PSB) beyond those in this TPSA which already represents a 2.5 times increase in utilization over that which they are currently funding (1.25% to 3.1%). We believe that rejecting this TPSA in the hope of securing a better contract would be reckless speculation, which would likely compel the government to continue their current unilateral action. This may lead to additional cuts, creating greater uncertainty with fewer resources and without any of the positive, non-monetary aspects that have been incorporated into the TPSA.

Accepting this TPSA will:

  • Improve funding for utilization,
  • Protect us against further unilateral action (UA) until our charter challenge is decided in the Ontario Superior Court of Justice (even if this occurs after the expiration of this contract),
  • Prevent the government from getting a stay of a positive judgment (in our favour) in our charter challenge while the case is in appeal, potentially getting us binding arbitration 2-4 years earlier.  Normally Sometimes decisions of the lower court are put on hold until the appeals process is concluded which can add an additional 2-4 years of not having binding arbitration,
  • Put us back at the table to manage the PSB, utilization and to our rightful position as leaders of healthcare reform, and
  • Open the door to discussions with the MOH regarding patient accountability and system sustainability.

While we are unhappy about a fixed PSB, the Government is responsible for funding new initiatives and unexpected events and there will be a permanent facilitator to assist the parties with binding dispute resolution authority on implementation issues.

Finally, because all the meetings between the OMA and government were conducted confidentially, and on a without prejudice basis, nothing discussed during the negotiation of this agreement can be used by the government in its defense of our charter challenge.

What follows are some FAQs based on some of the issues raised by the membership.

Was there abuse of power by the OMA board?

There has been much said regarding subversion of due process by those charged with negotiating on our behalf.  We do not feel that this is a fair characterization of the process. Council directed the board to demand binding arbitration. In response, the OMA had been working for over a year to get back to the negotiating table with a process that includes binding arbitration.  We were all made aware at the 2016 Spring Council that although formal negotiations were not in place, the OMA and the government had been talking to each other and that the OMA was preparing for a possible resumption of negotiations. The talks to revive negotiations included our lead negotiators, external negotiations counsel and OMA staff under the direction and authority of the Board.

Although the OMA can request binding arbitration, the government can refuse to grant it. We understand that a major reason the government would not agree to binding arbitration is that the treasury board is fearful of losing control over their planned budget. As part of the discussions, though, both sides explored possible limits to an arbitrator’s award that they could tolerate and in the course of those discussions, the parties discovered some middle ground and were able to come to a reasonable agreement on growth, taking into account the current economic and political climates. From there they brought in the rest of the team to negotiate the final deal. This is how the TPSA was arrived at. It is not a typical process but that does not mean that it was in any way dishonest. The Board is responsible for overseeing negotiations and it did so in this instance. They felt that that since it appeared to represent the best we could hope to achieve under all of the current circumstances, they had a responsibility to bring it to the membership.

This agreement was a surprise, why was there a rush to ratify it?

Several physicians were surprised that a TPSA was presented without forewarning that negotiations were even taking place. As mentioned, what was really taking place were confidential, without prejudice discussions on how to achieve a framework to resume formal negotiations under a process with binding arbitration. These discussions, as advised by legal counsel had to be strictly confidential to protect our charter challenge. The OMA board has received their legal advice from some of the top constitutional lawyers in the Country.

Although the timing (summer) of this deal is inconvenient, the original time interval and process for presenting, consulting and voting on this agreement is entirely consistent with previous PSA’s. As a result of the petition, though, that process has now been replaced by the general meeting which will add a couple more weeks to the whole process.

If we agree to a cap on the PSB, are we setting a dangerous precedent?

Many have expressed concern that by agreeing to this contract, we would be setting a precedent of endorsing a fixed PSB from which we would be unable to emerge. The executive does not agree. Ontario has had caps (and severe clawbacks) in the 1990s. We emerged from that in the early 2000s with significant increases in physician compensation over the next decade. Now we find ourselves in similar circumstances to the 90s.

We do not believe that voluntarily submitting to this cap means we will be capped forever.  More importantly, legal counsel has advised that accepting a cap now would not prejudice us in our next negotiation whether in bargaining or in arbitration.

Why should physicians assume the risk of funding any growth above the cap?

Emotionally, most physicians are angry that government insists on capping utilization thereby making physicians responsible for funding the necessary and natural growth that the system requires rather than having government shoulder this burden which rightly is their responsibility. We share this anger but we cannot react emotionally, rather we must deal with the current situation factually.

The TPSA funds growth at 2.5% while OMA Economics advise that growth will run at around 3.1% without management. To accommodate this, they negotiated the one-time payments (and a couple of planned $100 million cuts to the PSB). Together, these initiatives actually fund the 3.1%. Our economists seem quite convinced that with co-management we should be able to keep within this budget without enduring any further cuts.

The risk that concerns physicians relates to what happens if utilization exceeds 3.1% in spite of our best efforts and estimates. If this were to occur, unfortunately, through co-management, we would have to find additional savings in the PSB. Yes, in this, physicians are assuming financial risk. However, remember that under current and future unilateral actions, we are, and would continue to, pay for excess utilization out of our budget while growth remains significantly underfunded at 1.25%. In accepting this, we need to bear in mind the enormous Provincial burden of debt, and the determination or possibly even obsession of the current government to present a balanced budget along timelines for the next Provincial election.

Should the TPSA not be ratified, we remain subject to unilateral action under this government and there is no reason to believe that the next government would treat us any differently. Over the next four years, the current unilateral action would result in additional projected cumulative discounts totaling $1.1 billion. This is where we see the greatest financial risk in not having the TPSA ratified.

Will the proposed changes to the Charter Challenge gut it?

Many physicians are concerned that the negotiated changes to our Charter Challenge will severely undermine it. We have been assured that this simply isn’t true.  In fact, as noted above, the changes to the charter challenge directly benefit our profession.  Even if we were successful in the “court of first instance”, the Ontario Superior Court of Justice, the government could lock us up in appeals for years after.  By giving up their ability to ask for a stay if we are successful in court we would likely have binding arbitration for the negotiation of our next PSA.  Your executive sees this fact as one of the strongest features of the TPSA.  Having to wait an additional 2-4 years and possibly negotiate another PSA without binding arbitration would be a significant setback.

Additionally, some are upset we dropped our ability to seek damages because of unilateral action.  Recent case law is very clear that any damages awarded would be immaterial at best.  On the balance we believe the protections achieved through amending our charter challenge are definitely far superior to receiving immaterial damages. 

As noted previously, the OMA has hired some of the best lawyers in the country.  They can be viewed by clicking on the links below.

http://www.fasken.com/brian-burkett/

http://www.fasken.com/john-craig/

We respectfully ask all members to carefully vet the credentials of those offering differing opinions just as you would in a clinical scenario – please follow the best available evidence.

What other opportunities are in the TPSA?

Modernization of the Schedule of Benefits (SOB) is something we endorse and see as a necessary component of addressing the thorny issue of relativity. Co-management in this context is an opportunity for us to go Beyond The Mask and to demonstrate health advocacy, leadership, collaboration and professionalism to responsibly contribute to a better healthcare system. As you know, we are committed to implementing the top 5 Canadian Anesthesia Society, Choosing Wisely Canada don’ts and believe co-management will help us achieve these goals. We intend to be fully engaged in this process and will advocate strongly for our profession at the Medical Services Payment Committee (MSPC) when these challenges present themselves. The OMA and MOH have much experience with the MSPC process. Our Section (along with many others) has a good history of successful and positive interactions with the MSPC. In our opinion it is a good process and we are prepared to interact with it to the best of our ability to advocate for our patients and our profession.

Your executive will continue to participate in the process, advocate on your behalf and endeavour to keep you abreast of developments as they occur. We encourage every Section member to exercise their right to vote so that our voice is clearly heard at the General Meeting.

If there are any questions, please send them to us at info@ontariosanesthesiologists.ca.

Sincerely,

Executive Committee of Ontario’s Anesthesiologists – a Section of the OMA