BILL NO. 126

(as introduced)

1st Session, 60th General Assembly
Nova Scotia
55 Elizabeth II, 2006



Government Bill



Health Facilities Licensing Act



The Honourable Chris A. d'Entremont
Minister of Health



First Reading: November 23, 2006

Second Reading:

Third Reading:

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An Act Respecting
Health Facilities Licensing
and Equitable Access to Insured Services

Be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Health Facilities Licensing Act.

2 (1) In this Act:

(a) "accreditation authority" means any person or body approved by the Minister pursuant to Section 7;

(b) "accreditation program" means a prescribed program for determining if a health facility meets the appropriate standards to provide designated insured services or designated uninsured services;

(c) "applicant" means a person who applies for a licence or the renewal of a licence;

(d) "approved agreement" means the agreement between a district health authority and a health facility that is approved by the Minister;

(e) "dentist" means a legally qualified dentist who is lawfully entitled to practice dentistry in the Province;

(f) "designated insured service" means a diagnostic or surgical procedure, or a service so prescribed, that is an insured service;

(g) "designated uninsured service" means a diagnostic or surgical procedure, or a service so prescribed, that is an uninsured service;

(h) "diagnostic procedure" means a prescribed diagnostic procedure;

(i) "district health authority" means a district health authority as defined in the Health Authorities Act and the Izaak Walton Killam Health Centre as defined in that Act;

(j) "health facility" means any place or facility where a designated insured service or designated uninsured service is provided, or any type of prescribed place or facility, but does not include

(k) "insured service" means

(l) "insured person" means a person who is entitled to insured services under the Health Services and Insurance Act;

(m) "licence" means a valid licence issued or renewed pursuant to Sections 18 and 21;

(n) "licensee" means the holder of a licence;

(o) "Minister" means the Minister of Health;

(p) "physician" means a legally qualified medical practitioner who is lawfully entitled to practise medicine in Nova Scotia;

(q) "prescribed" means prescribed in the regulations;

(r) "provider" means a person who provides insured professional services pursuant to the Health Services and Insurance Act and includes a physician and a dentist;

(s) "surgical procedure" means the alteration of human anatomy manually or through the use of an instrument or the introduction of an instrument into the human body, when the procedure is carried out with the concurrent use of

to a degree that requires the monitoring of vital signs, but does not include a surgical procedure that is exempted in the regulations;

(t) "uninsured service" means a service rendered by a provider that is not an insured service.

(2) A portion of a place or facility mentioned in subclause (1)(j)(i) is a health facility if that portion is leased or provided in any manner by the owner or operator of the place or facility to another person for the purpose of providing a designated insured service or designated uninsured service, unless the service is provided in that portion of the place or facility by

(a) an employee of the owner or operator of the place or facility; or

(b) a person using his or her medical staff privileges.

EQUITABLE ACCESS TO INSURED SERVICES

3 (1) No person or entity shall

(a) pay or confer a benefit upon any person or entity in exchange for conferring upon an insured person a preference in obtaining access to an insured service;

(b) charge or accept payment or a benefit for conferring upon an insured person a preference in obtaining access to an insured service; or

(c) offer to do anything referred to in clause (a) or (b).

(2) A prescribed person who, in the course of the person's professional or official duties, has reason to believe that anything prohibited by subsection (1) has occurred shall promptly report the matter to the Minister.

(3) No proceeding for making a report under subsection (2) or for providing information in connection with the report shall be commenced against a person unless that person acts maliciously and the information on which the report is based is not true.

(4) No person or entity shall discipline or penalize any person for making a report under subsection (2) or for providing information in connection with the report unless the person who reported or provided the information acted maliciously and the information is not true.

(5) Where an employer or contractor is charged with contravening subsection (1) as a result of an act committed by an employee, subcontractor or person with whom the employer or contractor contracted, it is a defence to the charge that the employer or contractor took all reasonable steps in the circumstances to prevent such a contravention.

(6) Nothing in this Section abrogates any privilege that may exist between a solicitor and the solicitor's client.

4 (1) In this Section, "block or annual fee"

(a) means a fee charged in respect of one or more uninsured services, or a fee for an undertaking not to charge for such a service or to be available to provide such a service or services if

(b) has any other meaning that may be provided for in regulations made under subsection (3).

(2) A provider or health facility shall not refuse to render an insured service to an insured person or refuse to continue rendering insured services to an insured person for any reason relating to an insured person's choice not to pay a block or annual fee.

(3) For the purpose of this Section, the Governor in Council may make regulations governing block or annual fees, including the circumstances under which they may be charged and the information that must be provided to the person who is charged, but may not regulate the amount of such a fee.

LICENSING

5 (1) No person shall establish or operate a health facility without a licence.

(2) Every licensee shall have a separate licence for each health facility.

6 (1) Every person who wishes to obtain a licence or to renew a licence shall

(a) apply to the Minister in the form provided by the Minister;

(b) pay the prescribed application fee;

(c) provide the Minister with all information required under Sections 18 to 22, as relevant; and

(d) provide the Minister with any information or material that the Minister requests and reasonably considers relevant to the application.

(2) Every licensee who wishes to renew his or her licence shall apply for the renewal at least six months before the licence is to expire.

7 (1) The Minister may approve, for a prescribed period of time, any person as an accreditation authority.

(2) The Minister may approve different accreditation authorities for different accreditation programs.

8 (1) When issuing or renewing a licence or at any subsequent time, the Minister may impose any terms and conditions on the licence that the Minister considers appropriate.

(2) No health facility shall operate more than twelve hours a day and those twelve hours must be between five o'clock in the morning and ten o'clock in the evening.

(3) No health facility shall provide a major surgical procedure as prescribed.

9 Every licensee shall display his or her licence in a prominent place at the health facility for which the licence is issued.

10 (1) A licence is not transferable without the prior written approval of the Minister.

(2) No person shall cause or permit a change in the ownership of a health facility without the prior written approval of the Minister.

11 (1) Unless sooner suspended or cancelled, a licence is valid for

(a) the period specified in the licence, not to exceed a period of three years; or

(b) where no period is specified in the licence, a period of three years after the day on which the licence is issued or renewed.

(2) Notwithstanding subsection (1), a licence terminates automatically when

(a) a licensee closes the health facility permanently; or

(b) the approved agreement expires or is terminated.

12 (1) In this Section, "fee" means

(a) any amount paid by or on behalf of a person, whether paid to the person providing the designated insured service or designated uninsured service or another person, if the licensee or the person who provides the designated insured service or designated uninsured service at a health facility requires the payment as a condition of providing the service; and

(b) any amount paid by or on behalf of a person to purchase anything for use in the provision of a designated insured service or designated uninsured service, including any item in the definition of insured hospital services as defined under the Health Services and Insurance Act.

(2) No licensee shall fail to comply with any provision of this Act or the regulations or with any term or condition imposed on his or her licence.

(3) A licensee is responsible for the actions, activities and undertakings of every person who provides or assists in providing designated insured services or designated uninsured services at the licensee's health facility.

(4) No licensee shall charge or permit any other person to charge any fee to any insured person for any designated insured service provided at the licensee's health facility.

(5) Notwithstanding subsection (1), any amount that a licensee is entitled to receive from the Minister or a district health authority pursuant to this Act or the Health Services and Insurance Act for the provision of designated insured services is deemed not to be a fee.

(6) A licensee may charge a fee to any person for a designated uninsured service.

(7) Where a person receives a designated uninsured service in circumstances under which that person is expected to pay for the service, no person shall require that person to pay for the service unless, before the service is provided, the nature of the service to be provided and the charges for the service are fully explained to the person and the person agrees in writing to accept and pay the charges.

(8) No licensee shall provide a designated insured service or designated uninsured service in a time or manner that enables the recipient of the service to receive preferential service for an insured service.

(9) A licensee shall ensure that all aspects of the health services provided in the health facility are provided in accordance with this Act and regulations, and standards set by the accreditation authority and relevant professional regulators.

(10) A licensee shall ensure that all equipment used in the provision of designated insured services or designated uninsured services at the health facility

(a) is appropriate for the designated insured services or designated uninsured services being provided at the health facility;

(b) is in safe operating condition;

(c) is serviced at regular intervals in accordance with the manufacturer's recommendations to ensure that it performs all of its functions within the manufacturer's specifications; and

(d) complies with the requirements of the regulations.

13 (1) Every licensee shall furnish the Minister with an annual return and a set of financial statements containing the prescribed information.

(2) Every licensee shall furnish the annual return and set of financial statements within the prescribed deadlines.

14 (1) The Minister may

(a) request from a licensee any information that the Minister reasonably requires for the purposes of this Act and the regulations; and

(b) specify the manner in which, and reasonable time limits within which, the licensee shall provide the information mentioned in clause (a).

(2) No licensee shall fail to provide the Minister, in the manner and within the time limits specified by the Minister, with any information that the Minister requests pursuant to subsection (1).

15 The Minister may amend, suspend or cancel a licence if, in the opinion of the Minister, the licensee

(a) has failed to comply with

(b) is operating the health facility in a manner that is prejudicial to the health, safety or welfare of any person.

16 (1) The Minister shall not amend a licence, suspend or cancel a licence, refuse to issue, renew or transfer a licence without giving the applicant or licensee, as the case may be, an opportunity to be heard within fifteen days of the Minister's decision.

(2) Notwithstanding subsection (1), where the appropriate accreditation authority advises the Minister that it is necessary to protect the public interest and the Minister agrees, the Minister may immediately suspend or cancel a licence without giving the licensee an opportunity to be heard, but shall give the licensee an opportunity to be heard within fifteen days of the date of the suspension or cancellation.

HEALTH FACILITIES PROVIDING
DESIGNATED INSURED SERVICES

17 No person shall operate a health facility at which designated insured services are provided unless

(a) the health facility is accredited by an approved accreditation authority;

(b) the operator of the health facility has

that meets the prescribed criteria ; and

(c) the health facility has been issued a licence under Section 18.

18 (1) Subject to subsection (2), on receipt of an application pursuant to this Section, the Minister may issue, renew or refuse to issue or renew the licence.

(2) The Minister may issue or renew the licence if the Minister is satisfied that

(a) the applicant has complied with this Act and the regulations;

(b) the applicant has complied with and the application is consistent with any other Act, any regulation made pursuant to any other Act, any Act of the Parliament of Canada or any regulation made pursuant to any Act of the Parliament of Canada;

(c) there is a current need and there will likely be an ongoing need for the health facility and for the designated insured services to be provided at the health facility in the Province or in the health district where the health facility is located or is to be located;

(d) the health facility will be operated in accordance with this Act, the regulations and any terms and conditions imposed on the licence;

(e) the licensing of the health facility will result in an effective and efficient use of public resources;

(f) there is an expected public benefit in the issuing or renewing of the licence, considering factors such as

(g) the provision of designated insured services as contemplated under the application would not have an adverse impact on the publicly funded and publicly administered health system in Nova Scotia or impair the government's ability to comply with the Canada Health Act;

(h) the district health authority has an acceptable business plan in respect of the proposed agreement with the applicant showing how payment for the designated insured services to be provided at the health facility;

(i) the applicant has demonstrated compliance with all legislation, regulations and by-laws regulating the health professionals employed by the applicant;

(j) the applicant has demonstrated compliance with all ethical codes applying to the health professionals employed by the applicant;

(k) the health facility is accredited to provide the designated insured services referred to in the application, or that it will be accredited before any such services are provided; and

(l) the applicant has an approved agreement.

(3) Subject to subsection (4), the Minister may refuse to renew a licence if the Minister is satisfied that the criteria described in clause (2)(c), (e), (f) or (g) will not be met but only if the Minister has given the licensee written notice at least six months prior to the date that the licence expires.

(4) Subsection (3) does not apply if the licensee has not complied with subsection 6(2).

(5) The Minister shall give the applicant written notice of the Minister's decision.

(6) Where the Minister decides not to issue or renew a licence, the Minister shall provide written reasons to the applicant within thirty days.

19 Notwithstanding the Freedom of Information and Protection of Privacy Act, where the Minister has issued a licence under Section 18, the district health authority shall

(a) make the agreement between the district health authority or the Minister, as the case may be, and the health facility available to the public for inspection during normal business hours; and

(b) publish the following information in respect of the agreement in a form and manner directed by the Minister:

HEALTH FACILITIES PROVIDING
DESIGNATED UNINSURED SERVICES

20 (1) No person shall operate a health facility at which designated uninsured services are provided unless

(a) the health facility is accredited by an approved accreditation authority;

(b) the health facility has been issued a licence under Section 21; and

(c) the health facility agrees to reimburse the applicable district health authority or the Province for the costs of any prerequisite insured services and any routine subsequent insured services performed in the public system that arise from the designated uninsured service provided in the health facility.

(2) Routine subsequent insured services do not include complications arising from the designated uninsured service.

21 (1) Subject to subsection (2), on receipt of an application under this Section, the Minister may issue, renew or refuse to issue or renew the licence.

(2) The Minister may issue or renew the licence if the Minister is satisfied that

(a) the applicant has complied with this Act and the regulations;

(b) the applicant has complied with any other Act, any regulation made pursuant to any other Act, any Act of the Parliament of Canada or any regulation made pursuant to any Act of the Parliament of Canada;

(c) the provision of the designated uninsured services would not have an adverse impact on the publicly funded and publicly administered health system in the Province or impair the government's ability to comply with the Canada Health Act;

(d) the public interest would be served by the licensing of the health facility;

(e) the health facility will be operated in accordance with this Act, the regulations and any terms and conditions imposed on the licence;

(f) the applicant has demonstrated compliance with all legislation, regulations and by-laws regulating the health professionals employed by the applicant;

(g) the applicant has demonstrated compliance with all ethical codes applying to the health professionals employed by the applicant;

(h) the health facility is accredited to provide the designated uninsured services referred to in the application, or that it will be accredited before any such services are provided; and

(i) the applicant has complied with any other conditions the Minister considers appropriate.

(3) The Minister shall give the applicant written notice of the Minister's decision.

(4) Where the Minister decides not to issue or renew a licence, the Minister shall provide written reasons to the applicant within thirty days of issuing the decision.

ADMINISTRATION

22 (1) The Minister or the district health authority with the approval of the Minister may enter into any agreements with a licensee that the Minister or the district health authority considers necessary respecting the administration of the licensee's health facility, including an agreement to make payments to the licensee for designated insured services provided at the health facility.

(2) The Minister may enter into any agreements with the appropriate accreditation authority that the Minister considers necessary respecting the accreditation program.

23 Every person involved in the administration of this Act shall maintain confidentiality with respect to all medical information that comes to that person's knowledge regarding patients, and with respect to all matters that come to that person's knowledge relating to the inspection, investigation or inquiry under this Act, except

(a) in connection with the administration of this Act and the regulations thereunder;

(b) to one's own legal counsel;

(c) as otherwise required by law; or

(d) with the consent of the person to whom the information relates.

24 The Minister may designate any employee of the Province as an inspector and may appoint any other person as an inspector.

25 (1) For the purpose of administering or determining compliance with this Act or the regulations, an inspector may

(a) make any inspection, investigation, examination, test, analysis or inquiry that the inspector considers necessary;

(b) require any substance, thing, solid, liquid, gas, plant, animal or other organism to be produced for inspection, examination, testing or analysis;

(c) seize or take samples of any substance, thing, solid, liquid, gas, plant, animal or other organism, other than samples of human bodily substances;

(d) require any person to

and examine or copy the information, document or record, or take it to copy or retain as evidence;

(e) take photographs or video tapes of premises, or any condition, process, substance, thing, solid, liquid, gas, plant, animal or other organism located in or on the premises;

(f) bring any machinery, equipment or other thing into or onto the premises;

(g) use any machinery, equipment or other thing located in or on the premises;

(h) require that any machinery, equipment or other thing be operated, used or dismantled in or on the premises under specified conditions.

(2) Where the inspector believes or suspects that any premises is being used as a health facility without being licensed, the inspector may enter and inspect the premises in every part thereof to determine whether there is or has been a contravention of Section 5.

(3) Notwithstanding subsection (2), the inspector shall not enter a private dwelling without a warrant issued pursuant to Section 26 unless the owner or occupier of the dwelling consents to the entry.

26 (1) Where

(a) an owner or occupier of a premises denies entry or access to, through or over the premises to an inspector or there are reasonable grounds for believing that the owner or occupier may deny entry or access to, through or over the premises to an inspector;

(b) an owner or occupier of a premises obstructs an inspector in the exercise of powers under Section 25;

(c) an owner or occupier of a premises refuses to produce any substance, thing, solid, liquid gas, plant, animal or other organism for the purposes of inspection, examination, test or inquiry;

(d) there are reasonable grounds to believe that the owner or occupier of a premises may prevent an inspector from carrying out powers under Section 25 or may deny access to any thing as a result of which the inspector may be unable to carry out powers under Section 25; or

(e) no person is present to grant access to the premises that is locked or otherwise inadmissible,

an inspector may apply to a justice of the peace for a warrant under this Section.

(2) Where a justice of the peace is satisfied on the evidence upon oath that

(a) there are reasonable and probable grounds for believing that it is necessary to

or to do any such things, for the purpose of this Act or the regulations, the enforcement of this Act or the regulations, the exercise of a power or carrying out of a duty under this Act or the regulations; and

(b) an inspector

or where

the justice of the peace may at any time issue a warrant authorizing the inspector to carry out any action under Section 25, by force if necessary, together with such peace officers as the inspector calls upon to assist.

(3) A warrant issued under this Section shall state the date on which it expires, which must be a date not later than fifteen days after the warrant is issued.

(4) A justice of the peace may receive and consider an application for a warrant under subsection (1) without notice to and in the absence of the owner or occupier of the premises or the owner or occupier of the dwelling.

(5) A warrant may be subject to any conditions that are specified in it.

27 (1) Where any books, records, papers, documents or accounts are inspected, seized, examined or produced pursuant to Section 25 or 26, the Minister or inspector may make copies of those books, records, papers, documents or accounts.

(2) Any person authorized to make copies pursuant to subsection (1) shall

(a) make those copies as soon as is reasonably possible; and

(b) promptly return the books, records, papers, documents or accounts from which the copies were made to

(3) A document certified by the Minister or an inspector to be a copy made pursuant to this Section

(a) is admissible in evidence without proof of the office or signature of the person purporting to have certified the document; and

(b) has the same probative force as the original document.

28 No person shall

(a) resist, obstruct, hinder or interfere with the Minister, an inspector, or a person aiding an inspector in the performance of the inspector's duties; or

(b) refuse to provide the person's licence or any book, record, paper, document, account or information required by this Act to the Minister, an inspector or a person aiding an inspector when requested to do so.

29 An inspector who is exercising powers or performing duties or functions under this Act or the regulations may call for the assistance of any peace officer and, where an inspector calls for such assistance, the peace officer shall render it.

30 (1) Every person who fails to comply with this Act or the regulations or with an order made pursuant to this Act or the regulations is guilty of an offence and is liable on summary conviction to

(a) in the case of a corporation, a fine not exceeding ten thousand dollars; or

(b) in the case of an individual, a fine not exceeding two thousand dollars or to imprisonment for a term of not more than six months, or both.

(2) Where an offence under this Act or the regulations is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

(3) Notwithstanding subsection (1), a person who is guilty of a second or subsequent offence, other than by virtue of subsection (2), is liable to

(a) in the case of a corporation, a fine not exceeding fifty thousand dollars; or

(b) in the case of an individual, a fine not exceeding ten thousand dollars or to imprisonment for a period of not more than one year, or both.

(4) In a prosecution for an offence under this Act or the regulations, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.

(5) Where a corporation commits an offence under this Act or the regulations, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the violation of this Act or the regulations is guilty of the offence and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted.

(6) Unless otherwise provided in this Act, no person shall be convicted of an offence under this Act or the regulations if the person establishes that the person exercised all due diligence to prevent the commission of the offence.

31 (1) In addition to any other remedy or penalty pursuant to this Act or at law, the Minister may apply to a judge of the Supreme Court of Nova Scotia for an order restraining any person from establishing or operating a health facility without a licence contrary to Section 5.

(2) On an application pursuant to subsection (1), the judge of the Supreme Court of Nova Scotia may make any order that the judge considers appropriate.

32 No action or proceeding lies or shall be instituted against the Minister, district health authority, the accreditation program operator, an inspector, or any person aiding an inspector, where the Minister, district health authority, accreditation program operator, inspector, or person aiding the inspector is acting pursuant to the authority of this Act or the regulations, for any loss or damage suffered by reason of anything in good faith done, caused or permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any duty or responsibility imposed by this Act or the regulations.

33 The Governor in Council may make regulations

(a) prescribing programs that are accreditation programs;

(b) prescribing the terms of engagement for the accreditation authority;

(c) prescribing types of places and facilities that are or are not health facilities;

(d) exempting procedures that are not to be considered surgical procedures;

(e) prescribing procedures that are to be considered diagnostic procedures;

(f) prescribing persons for the purposes of subsection 3(2);

(g) prescribing services that are designated insured services or designated uninsured services;

(h) prescribing the amount and requiring the payment of application fees and other fees payable by applicants or for other services provided by the Minister or the accreditation authority pursuant to this Act or the regulations;

(i) respecting forms for the purposes of this Act and the regulations;

(j) respecting procedural matters related to obtaining the Minister's consent for the purpose of Section 10;

(k) respecting what constitutes a change in ownership for the purpose of Section 10;

(l) prescribing criteria for the agreement referred to in clause 17(b);

(m) respecting the form and manner of publishing the information set out in Section 19;

(n) prescribing qualifications for inspectors referred to in Section 24;

(o) respecting block or annual fees;

(p) respecting the care, treatment and services provided at a health facility;

(q) respecting the quality and standards of service to be provided at a health facility;

(r) respecting the quality and standards of health facilities;

(s) respecting qualifications for employees of health facilities;

(t) respecting the construction, alteration, maintenance, repair and location of health facilities;

(u) respecting equipment to be used in health facilities;

(v) respecting the books, records, papers, documents and accounts to be kept by licensees, including the form and content and the place where they are to be kept;

(w) respecting the records that are to be kept by licensees with respect to the care and treatment of patients;

(x) respecting confidentiality of records kept by licensees with respect to the care and treatment of patients and respecting who may have access to those records;

(y) respecting systems that licensees are to establish to monitor the services provided at health facilities;

(z) establishing categories of licensees and, for that purpose, prescribing different licences for each category;

(aa) providing for the issue, renewal, suspension, reinstatement or revocation of or refusal to issue or renew licences;

(ab) respecting annual returns, financial statements and the furnishing of other information to the Minister by licensees, including the deadlines by which the annual returns, financial statements or other information are to be furnished;

(ac) requiring operators of health facilities to provide reports, returns and information to a health authority or accreditation authority or the Minister and requiring health authorities or accreditation authorities to provide reports, returns and information to the Minister, including regulations respecting the nature and contents of the reports, returns or information to be provided, the form in which they are to be provided and the times at which they are to be provided;

(ad) governing publication of reports, returns and information referred to clause (ac);

(ae) prescribing any other matter or thing required or authorized by this Act to be prescribed in the regulations;

(af) defining any word or expression used in this Act but not defined in this Act;

(ag) further defining any word or expression;

(ah) respecting any other matter or thing that the Governor in Council considers necessary to carry out effectively the intent and purpose of this Act.

34 The exercise by the Governor in Council of the authority contained in Section 4 or 33 is regulations within the meaning of the Regulations Act.

35 Chapter 281 of the Revised Statutes, 1989, the Medical Services Act, is repealed.

36 Schedule B to Chapter 450 of the Revised Statutes, 1989, the Summary Proceedings Act, is amended by adding "Health Facilities Licensing Act" immediately after "Gas Distribution Act".

37 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.

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