Board orders Kingston doctor to repay OHIP more than $600,000

A nurse applies pressure after administering a vaccine during a drive-thru clinic. Photo via Canva.
The creation of new precedents can be a slippery slope, and one local physician is warning of just that after a recent ruling against her by the Ontario Health Services Appeal and Review Board.
“This has far-reaching implications,” Dr. Elaine Ma told Kingstonist less than 24 hours after the decision of the Appeal Board was released, ordering that she repay hundreds of thousands of dollars to the Ontario Health Insurance Plan (OHIP).
After a hearing in Toronto that took four days spread across two weeks, the Kingston physician has been ordered to repay the over $600,000 she received for a mass COVID-19 immunization clinic.
As Kingstonist readers will recall, Dr. Elaine Ma of Kingston’s Frontenac Doctors family medical clinic had been instructed by OHIP to return the funds, which she had received after filing a claim with the insurance program to cover the costs of a mass COVID-19 vaccination clinic that took place in a Kingston parking lot during the height of the Omicron variant of the virus. Ma, who used those funds to pay the many people whose work went into the celebrated clinic (one of many such clinics organized by the doctor locally), travelled to Toronto to attend a hearing of the Ontario Health Services Appeal and Review Board to determine whether those funds had been rightfully earned, or if they should be repaid to OHIP. OHIP had cited decades-old bulletins containing ministerial directives that point to medical students being ineligible for payment through their program, as well as a directive saying compensation only applies to work performed within the four walls of a doctor’s own clinic. Further, the Ministry of Health accused Ma of having “pocketed” some of the hundreds of thousands in OHIP payments — though the Ministry refused to expand or comment further on that allegation.
The hearing took place on October 22, 23, 24, and 29, 2024, during which time Kingstonist provided continued coverage of the matter. On Tuesday, Nov. 26, 2024, the decision of the Health Services Appeal and Review Board was released publicly. In short, the board found that Ma is required to repay OHIP the nearly $601,000.
The decision states that the hearing was overseen by three members of the Board: Vice-Chair Beth Dowling, who presided; Board member Dr. Jennifer Sarjeant; and Board member Gillian Shaw. The decision also notes that the hearing was requested under Section 20(1)4 of the provincial Health Insurance Act.
The Board’s 34-page decision cites multiple sections of the Health Insurance Act, as well as the Schedule of Benefits associated with the Act, which is not publicly available. In the interest of providing a concise overview of the Board’s decision, Kingstonist will not enumerate all of the citations listed in the decision; however, those wishing to review the cited sections of the Act can do so through the links provided within the full decision, published by the Government of Canada. The decision also refers to everyone who testified at the hearing besides Ma and the OHIP General Manager (GM). Of note, and as referred to in previous Kingstonist coverage of this matter, Dr. Piotr Oglaza, Medical Officer of Health for Kingston, Frontenac, Lennox and Addington (KFL&A) Public Health addressed the Appeal Board. However, none of Oglaza’s testimony was referred to in the decision.
Although the Ministry of Health had indicated to Kingstonist earlier that the issues regarding OHIP payments to Ma concerned one specific mass immunization clinic (the date of which it would not provide), the Board’s decision indicates that the “clinics in question” were held at St. Lawrence College, Richardson Stadium, and LaSalle Secondary School. It does not specify when the clinics occurred but does say that Dr. Ma’s relevant billing period was from May 14, 2021, to February 27, 2022. All the services in question involved administration of COVID-19 vaccines.
“Dr. Ma recruited physicians and non-physicians to administer vaccines at these clinics and billed the Ontario Health Insurance Plan (OHIP) fee codes G593 and Q593 for each patient under her physician billing number for the vaccines they administered,” the Board’s overview of the case states.
According to the decision, fee code G593 is for “injections and immunization” and equates to $13.00, and fee code Q593 is for a “sole visit premium COVID-19 vaccine” and equates to $5.60. The decision notes that there is no problem with doctors billing for both codes for the same patient for the same visit, which Dr. Ma did, according to the decision’s breakdown of the governing legislative payment scheme.
Although the decision does not say specifically when Ma billed for services, it does provide the following breakdown for the billing submitted, with the dates of the services being billed for.
Table via Ontario Health Review and Appeal Board decision ‘Ontario (Health Insurance Plan) v Ma, 2024’
The decision overview explains that in May 2022, the Ministry of Health initiated an audit of Ma’s claims submitted to OHIP from the relevant billing period specified above and “ultimately determined that the claims at issue did not meet the payment requirements for the relevant codes” under the Health Insurance Act, as well as the regulation of the Act that dictates the Schedule of Benefits for Physicians (the payment schematics outline how much OHIP will pay for different services). Ma was notified of this audit on November 10, 2022, according to the Board’s documents, and was informed that she was required to return $606,657.60 “for claims that were paid but were not eligible for payment.”
The decision explains the procedural back-and-forth that ensued, with Ma objecting to OHIP’s findings and OHIP ultimately requesting the hearing and making “an order” pursuant to the Act requiring Ma to “reimburse OHIP the amount of $600,962.16 plus interest.”
According to a footnote in the decision, the total amount paid to Ma ($600,962.16) “varied very slightly” from the total amount she’d claimed ($606,657.60) “because a number of claims were not paid for reasons unrelated to the issues in this hearing.”
Citing language within the Act, as well as the Schedule of Benefits, the Board found that those services billed for by Ma were not, in fact, rendered in accordance with the aforementioned guidelines. Of the thousands of vaccinations Ma billed for, only a relatively minute number of them (which were carried out at a clinic on Wolfe Island) were deemed to have been rendered in accordance with the stipulations of the Act.
In short, language from an OHIP bulletin issued in 1989 and amended in 2001 formed the basis of much of the reasoning related to those to whom Ma delegated authority to administer the vaccinations. Based on that language, these individuals were deemed not to be employees of Ma, and therefore were not eligible to provide the services billed for.
The Board’s decision points out that the names of people who administered the vaccines at most of the clinics she organized were not submitted into the COVID-19 vaccination records database, COVaxON.
“Dr. Ma testified that she delegated the administration of vaccines at the clinics in question to other fully licensed independent physicians, medical trainees (i.e., residents), undergraduate medical students, nurses, nursing students and medical assistants from her office,” the decision reads.
“The Appeal Board notes that it is not possible to determine the identity of the vaccinators from the COVaxON records submitted by Dr. Ma. With six exceptions (five physicians and one nurse), only Dr. Ma is identified in the COVaxON records as the vaccinator.”
And why is that? Ma explained that the system, put together in the throes of the pandemic, did not allow physician users to input the names of those not already in the database. Therefore she was not able to input the names of those administering the vaccines.
But, as Ma’s statements at the beginning of this article suggest, the issues raised by OHIP, the Appeal Board, and the Ministry of Health refusing to cover the costs of medical students working under the guidance of physicians could lead to a regrettable outcome.
And it is not the $606,657.60 — plus (an unspecified amount of) interest — that concerns Ma most, she said.
“What I am worried about is that we are in a health care crisis where we need family doctors desperately,” Ma said. “We need physicians, we need nurse practitioners — and there is now case law that says physicians will be losing money” by training students.
“Which is a complete disincentive to train, and either means people ignore that ruling, or… they don’t train.”
She noted that it is standard for people who train on the job to be paid for that work; she gave examples such as lawyers being paid when they take on articling students, or mentors being paid during apprenticeships within the skilled trades.
Dr. Elaine Ma. Photo via Queen’s University website.
“Of course, payment is made in all of those fields for work done, and that is a part of education, right? Well, not if we lose that. And we have lost that. This is now case law. This now means that no medical student across our entire province can do a procedure that [the instructing] physician can then bill for,” Ma said.
“So as of when this decision came out… we have now undermined our ability to educate our future health-care workers.”
Another aspect of the ruling is that the Board found Ma was not practicing within her medical practice clinic at the time of the mass immunization clinics, namely because she had not leased the space (parking lots at local schools) in which those clinics took place. Unless a service takes place within the four walls of a physician’s clinic, or in space they have otherwise acquired specifically to carry out procedures, the service is not billable, according to the Act and relevant OHIP documentation, the Board found.
This decision — like that of whether or not a procedure carried out by a medical student can be billed for — is a bit of a game of semantics, Ma’s arguments to the Board suggested. She feels that, given the circumstances of the global pandemic and the call for as many needles in as many arms as possible (a circumstance the Board ruled was not “extenuating”), OHIP was being overly strict in its interpretation of the rules.
Nonetheless, the decision of the Board stands. So, what happens next? Is Ma planning to appeal?
“I’m really not sure,” she said.
“I wish I had an answer. I would tell you if I had an answer, but I’m honestly not sure. I am so disappointed for the future of medical education, and so worried about the future of medical education. I truly believed, at all times, that the government would step in and shut this down, recognizing the impact that this will have, so the fact that we’d gotten to a hearing was unbelievable. The fact that we got to a verdict [like] this is unbelievable,” the Kingston doctor continued.
“Will the government step in and say that there is a bigger cause here that is far bigger than one physician and whether or not a medical student is considered an employee in a parking lot, and whether or not a vaccine record has my name on it, or somebody I delegated named on it? I still am hanging on a tiny bit of hope that somebody in the government will recognize how big of an issue this is and step in and make this right.”
Asked what people who support her might be able to do to help, Ma said reaching out to those in power — Health Minister Sylvia Jones (who did not respond to multiple requests for interviews), Ontario’s Chief Medical Officer Dr. Kieran Moore (whom Ma has not heard from since her issues with OHIP first began, and who did not respond to requests for interviews), and Members of Provincial Parliament (MPPs) Ted Hsu (Kingston and the Islands; who has already taken up Ma’s case in the Legislature) and John Jordan (Lanark—Frontenac—Kingston), to name a few — and demanding action and answers.
As for the clinics she held here in Kingston that provided COVID-19 vaccinations for thousands and thousands locally, Ma said she stands by that work and she would do it again. She also said the effects of what she’s faced since those clinics are already showing.
“Our vaccine rates in our community this year are lower than they’ve been since before the pandemic, because we weren’t able to vaccinate like we have been in the past,” said Ma, who was herself struggling to speak during the interview because of laryngitis.
“There’s an absolute demand for these vaccines, and we are seeing such horrible influenza rates… I work in urgent care, I work as a family doctor, and I will tell you: I’m seeing, every day, people with vaccine-preventable illnesses,” she continued, noting the scheduled vaccination clinic her practice cancelled in October, which led to Kingstonist questioning why prior to Ma’s hearing.
“Demand was huge,” Ma concluded. “However, we have not been able to practically get our vaccine rates as high as we would have gotten them had we been able to run these drive-thru clinics that are safe, effective, and proven to prevent illness.”