Bakerlaw has been extensively involved in filing applications with OHIP for out-of-country treatment, as well as filing appeals of negative OHIP decisions to the Health Services Appeal and Review Board. Many of our clients have been adolescents and young adults with complex mental health disabilities who urgently require residential treatment in specialized facilities in the United States.

See our earlier blog posts on this topic here (link to blog post).

More recently, OHIP has begun to approve fewer and fewer applications for this type of funding, regardless of the merit of the application. As a result, the lives of young Canadians are being unnecessarily lost because they cannot receive the treatment they need to recover. This recent “clamp down” on out-of-country applications violates both the Canada Health Act and the Charter of Rights and Freedoms.

Unfortunately, challenging Ministry action on these grounds would be prohibitively expensive and disproportionate to the private costs patients end up having to absorb. In essence, the Ministry is able to refuse funding because no one can afford to prove them wrong.

The Ministry has also tried to block funding applications by making it very difficult for doctors to support out-of-country treatment. Ministry personnel have used harassing and intimidating techniques to deter physicians from providing out-of-country opinions on behalf of their patients. The Ministry also refuses to provide any compensation to physicians who make out-of-country referrals and applications, which means physicians are already hesitant to get involved.

The Ministry will only consider the opinion of a doctor (and not another treating professional) and so a doctor’s endorsement is necessary to submit an out-of-country funding application. Without an Ontario doctor willing to make both the referral and the application, and testify at an HSARB hearing, meritorious claims have no chance of success.

The Ministry is creating these obstacles at the same time that the mental health needs of teenagers in Ontario are becoming more evident and acute. See recent media coverage of this issue here (link to article).

There remains a pressing need for many young people to seek treatment outside of Ontario. While there are some limited residential treatment services available in Ontario, often these are not an option because of the existing waitlist, the type of mental illness, their service constraints, or the person’s particular medical needs (including risk of self-harm) at the time.

Denying funding for this treatment can have serious, even fatal, consequences. For example, one of our clients was a young man with serious mental health challenges who passed away after OHIP denied funding for much-needed residential treatment in the U.S. While he was receiving treatment, his family learned that OHIP had denied funding because OHIP erroneously believed that the treatment was available in Ontario on a user-pay basis at the cost of $56,000. This young man was otherwise eligible for the treatment he was receiving in the U.S., and this treatment was helping him to recover. On hearing this news, this young man voluntarily (and against his family’s wishes) returned to Ontario, as he did not want his family to incur the high cost of treatment in the U.S. or in Ontario. Shortly after returning to Ontario, this young man died as a result of an accidental drug overdose.

Bakerlaw believes that denying OHIP coverage based on the existence of user-pay treatment violates both the Canada Health Act and s. 7 of the Charter of Rights and Freedoms.

As in this young man’s case, it can be very difficult to obtain OHIP funding for out-of-country treatment. In order to receive this funding, there is a strict test that must be met. Read our FAQ on some of the details of this test here (link to FAQ). For certain types of treatment, including residential treatment for mental health issues, the treatment must be at one of OHIP’s “preferred providers.” Unfortunately, OHIP has recently narrowed the list of “preferred providers” for residential treatment to just three facilities – see the list here (link to list).

This list used to include at least a dozen providers who offered a variety of mental health services. With this updated list, many youths will be unable to receive the residential treatment they require – this treatment is not available in Ontario and is not funded by OHIP outside of the province. This violates the Canada Health Act and s. 15 of the Charter of Rights and Freedoms as these “preferred provider” limitations are utilized exclusively to discriminate against treatment for persons suffering from mental disorders.

In a recent case (in which bakerlaw was not involved), OHIP denied funding for residential DBT treatment even though it was offered at one of these “preferred providers.” In this case, a teenaged girl diagnosed with Borderline Personality Disorder required residential DBT treatment. This treatment was not available in Ontario, and so she received treatment at the McLean 3East facility at McLean Hospital (which is on the list of preferred providers). OHIP denied funding on the basis that the particular 3East program was not included under the “preferred provider” arrangement with the Hospital. The Health Services Appeal and Review Board held this program was included under the preferred provider arrangement, and so OHIP should have covered the treatment. Read the full decision here (link to decision).

The government asked the HSARB to reconsider this decision, and the HSARB recently denied this reconsideration request – meaning that the HSARB’s original decision remains good law, and OHIP should have covered her treatment (this decision has not yet been posted). Bakerlaw understands that the government does not intend to appeal this decision.

While this decision is a positive development for youths who require residential treatment out-of-country, there is still much work to be done to ensure that adolescents and young adults receive funding for the treatment they require but which is unavailable in Ontario.