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Copyright 2000: Queens Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER M-5

AN ACT RESPECTING INSURED MEDICAL CARE SERVICES IN THE PROVINCE

Analysis

1. Short title

2. Definitions

3. Commission

4. Quorum

5. Remuneration of members of commission

6. Vacancy in membership

7. Presiding officer at meetings

8. Use of seal

9. Status of commission

10. Head office

11. Executive director and medical director

12. Appointment of staff

13. Acquisition of property

14. Type of currency borrowed

15. Authorization re: borrowing

16. Medical and dental care plans

17. Powers respecting plans

18. Duty to report to minister

19. Duty of residents to register

20. Actions barred

21. Physicians to submit accounts

22. Payment to physicians

23. Rights

24. Payment for services

25. Right not to be assigned or attached

26. Non-application of Act

27. Insurance fund

28. Agreement with Government of Canada

29. Non-liability of minister

30. Financial year

31. Yearly budgets

32. Budget may be revised

33. Minister's approval

34. Commission limited to budget

35. Commission to submit report to minister

36. Financial statement

37. Minutes to be kept

38. Audit of accounts

39. Penalties for false statements

40. Notification of default

41. Withholding of payments

42. Appeal

43. Recovery of cost of services from wrongdoer

44. Regulations

45. Regulations by minister

46. Offence and penalty

47. Date of effect of regulations

48. Regulations by commission

49. Power to establish plans

50. Agreements

51. Consultation with medical association

52. Plan to be non- profit

53. Offence

54. Members of House of Assembly


Short title

1. This Act may be cited as the Medical Care Insurance Act.

RSN1970 c265 s1

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Definitions

2. In this Act

(a) "beneficiary" means a person who is so defined under regulations made under section 45 and includes a dependant of a beneficiary;

(b) "commission" means the Newfoundland Medical Care Commission continued by this Act;

(c) "dental association" means the Newfoundland Dental Association continued under the Dental Act;

(d) "dependant" means a person who is a resident and depends upon another resident for maintenance;

(e) "insured services" means the services so defined under regulations made under section 44;

(f) "medical association" means the Newfoundland Medical Association;

(g) "minister" means the Minister of Health or other minister of the Crown appointed by the Lieutenant-Governor in Council to administer this Act;

(h) "optometrists association" means the Newfoundland Association of Optometrists continued by the Optometry Act;

(i) "participating physician" means a physician who has not made an election, under subsection 21(3), to collect payments in respect of insured services rendered by him or her to residents, otherwise than from the commission;

(j) "physician" means a person who is lawfully entitled to practise medicine in the province and includes a person who, under the regulations, is entitled to provide insured services;

(k) "resident" means a person lawfully entitled to be or to remain in Canada, who makes his or her home and is ordinarily present in the province, but does not include a tourist, transient or visitor to the province; and

(l) "specialist" means a physician who is recognized as a specialist by the Newfoundland Medical Board or a physician practising outside the province who is recognized as a specialist by the appropriate body in the jurisdiction where the physician practises.

RSN1970 c265 s2; 1971 No39 s2; 1975-76 No51 s1; 1983 c84 s1

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Commission

3. (1) The Newfoundland Medical Care Commission is continued as a corporation.

(2) The membership of the commission shall consist of not less than 5 voting members who shall be appointed by the Lieutenant-Governor in Council and of 2 non-voting members who shall be the Deputy Minister of Health, or an officer of the Department of Health designated by him or her, and the executive director of the commission.

(3) Not less than 2 of the voting members of the commission shall be appointed by the Lieutenant-Governor in Council upon the nomination of the minister from a list of not less than 5 names which shall be submitted to the minister by the medical association, and upon the expiration of the term of office of the voting members the provisions of this subsection shall be observed in connection with further appointments to the commission.

(4) The Lieutenant-Governor in Council shall designate 1 of the voting members of the commission to be chairperson and the voting members of the commission shall select 1 of their number to be vice-chairperson.

(5) A voting member of the commission shall, subject to pleasure, hold office for the term prescribed by the Lieutenant-Governor in Council in the order appointing him or her or in some later order.

(6) The commission shall be responsible to the minister.

RSN1970 c265 s4; 1974 No41 s2

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Quorum

4. (1) A majority of the voting members of the commission shall constitute a quorum.

(2) Where, at a meeting of the commission, there is an equality of votes inclusive of his or her own vote, the member presiding at the meeting has a 2nd or casting vote.

(3) Where a vacancy occurs in the voting membership of the commission because of the death, resignation or illness of a member, or for another reason, the Lieutenant-Governor in Council may appoint a person to replace him or her, provided that, if the person to be replaced was appointed in accordance with subsection 3(3), that subsection shall be observed in appointing a replacement.

RSN1970 c265 s5

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Remuneration of members of commission

5. The Lieutenant-Governor in Council may authorize the payment of remuneration and expenses to some or all of the members of the commission.

RSN1970 c265 s6

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Vacancy in membership

6. (1) The exercise of the powers of the commission shall not be impaired because of a vacancy in its membership.

(2) All acts done by the commission shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment or qualification of a person purporting to be a member of the commission, be as valid as if the defect had not existed.

RSN1970 c265 s7

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Presiding officer at meetings

7. (1) The chairperson, or in his or her absence, the vice-chairperson shall preside at all meetings of the commission and his or her decision on all points of order shall be final.

(2) Where both the chairperson and the vice-chairperson are absent from a meeting of the commission, the other members of the commission present shall appoint a temporary chairperson who has and may exercise the powers and shall carry out the duties of the chairperson at the meeting.

RSN1970 c265 s8

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Use of seal

8. (1) The application of the common seal of the commission shall be witnessed by the chairperson or vice-chairperson and by the executive director of the commission.

(2) A contract or instrument which, if entered into or executed by a person not being a corporation would not be required to be under seal, may be entered into or executed on behalf of the commission by a person generally or specially authorized by it for that purpose.

(3) A document purporting to be a document executed or issued under the seal of the commission or on behalf of the commission shall, until the contrary is proved, be considered to be a document so executed or issued.

RSN1970 c265 s9

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Status of commission

9. (1) The commission is, for the purposes of this Act, an agent of the Crown and may exercise its powers under this Act only as an agent of the Crown.

(2) The commission may, on behalf of the Crown, enter into contracts or other agreements and acquire and dispose of and otherwise deal with property of all kinds in the name of the commission.

(3) Notwithstanding that the commission is an agent of the Crown, it may enter into contracts with the Crown and appoint agents to act on its behalf for any purpose and on the conditions that it considers necessary.

(4) Property of the commission is the property of the Crown and title to it shall be vested in the name of the commission.

(5) A member of the commission or a person employed by the commission does not become, because of the employment only, an officer or employee of the Crown.

RSN1970 c265 s10

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Head office

10. (1) The head office of the commission shall be in the City of St. John's.

(2) Subject to the approval of the minister, the commission may establish other offices and agencies in the province that it considers expedient.

RSN1970 c265 s11

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Executive director and medical director

11. (1) The Lieutenant-Governor in Council may, upon the recommendation of the minister following the minister's consultation with the commission, appoint an executive director and a medical director and fix their salaries.

(2) The executive director shall be the chief executive officer of the commission and shall, subject to the commission, be charged with the general direction, supervision and control of the business of the commission and shall have those other powers, duties and functions that may be conferred on him or her by this Act, the regulations or the commission.

(3) The medical director shall, subject to the commission, have those powers, duties and functions that may be conferred on him or her by the regulations or the commission.

RSN1970 c265 s12

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Appointment of staff

12. (1) Subject to the approval of the minister, the commission may establish posts for and appoint those inspectors, managers, accountants, other officers, technical and professional and other employees and workers that may be necessary, and fix their remuneration and terms of service and prescribe their duties and functions.

(2) The minister may by order

(a) empower the commission to make appointments to; and

(b) fix the remuneration to be paid in

every post or class of posts designated in the order, and a class may be designated by reference to every post, with or without exception, where the annual remuneration does not exceed an amount prescribed in the order, and the commission may make appointments to and fix the terms of service in respect of every post or class of posts so designated, without further approval of the minister.

(3) Before the appointment of the voting members of the commission under this Act, the minister may exercise the powers of the commission under subsection (1).

(4) Before the appointment of the voting members of the commission, the minister may exercise generally the powers of the commission and carry out its functions and duties.

(5) A person employed in the administration of this Act shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of that person's employment and shall not communicate the matters to another person except

(a) to a physician for a purpose relating to insured services that he or she has provided;

(b) for the purposes of the administration of this Act;

(c) for purposes of consultation between the members of the commission and the medical association, the dental association or the optometrists association;

(d) to a person who is empowered by a statute which requires disclosure of information;

(e) at the discretion of the minister to a person engaged in health or medical research; or

(f) in other circumstances that may be prescribed by the Lieutenant-Governor in Council.

(6) A person to whom information is provided under paragraph (5)(e) shall not publish or disclose the information where the publication or disclosure may be detrimental to the personal interest or privacy of a person.

(7) A person who contravenes subsection (6) is guilty of an offence and liable on summary conviction to a fine not exceeding $100 and in default of payment to a term of imprisonment not exceeding 30 days.

(8) The commission is not liable for damages caused to a person as a result of the release of information under subsection (5).

(9) An action for defamation against a member or employee of the commission may not be founded on the publication or disclosure of information released under subsection (5).

RSN1970 c265 s13; 1971 No39 s3; 1983 c84 s2; 1988 c41 s1

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Acquisition of property

13. Notwithstanding that it is an agent of the Crown, the commission may

(a) purchase, lease or otherwise acquire land or personal property of every nature and kind, or an interest, which the commission considers necessary, convenient or advisable to acquire for or incidental to the exercise of the powers, functions or duties of the commission;

(b) receive lands, buildings, money or other property, by gift or trust for public uses or for the use of the commission;

(c) borrow by temporary, interim or long term loans or raise or secure the payment of money in a manner that the commission thinks appropriate and, in particular, by the issue of bonds, debentures or other securities, and purchase, redeem or pay off the securities;

(d) pay interest, premium and sinking fund payments in respect of its borrowing;

(e) sell, improve, manage, exchange, lease, mortgage, charge, dispose of, turn to account, grant a term easement, right or interest in, over or affecting, or otherwise deal with, all or a part of the property and rights of the commission;

(f) draw, make, accept, endorse, execute and issue promissory notes, bills of exchange and other negotiable or transferable instruments; and

(g) generally do all things which the commission considers necessary, convenient or advisable for or incidental to the exercise of the powers, functions and duties of the commission.

RSN1970 c265 s15

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Type of currency borrowed

14. The money authorized to be borrowed under section 13 may be borrowed and repaid in Canadian or United States of America currency, or in the currency of another country or partly in 1 currency and partly in another, as the commission may approve, and authority for borrowing or repaying the money includes authority to pay the exchange charges that may be applicable to the currency and the interest and premium incurred in respect of the borrowing, and to make sinking fund payments.

RSN1970 c265 s16

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Authorization re: borrowing

15. The commission shall not borrow money unless authorized by the Lieutenant-Governor in Council to do so.

RSN1970 c265 s17

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Medical and dental care plans

16. (1) The commission shall establish and administer a plan of medical care insurance for the residents of the province.

(2) The commission shall be responsible for the supervision, direction and control of dental programs and other services relating to the health of the public that the minister may ask the commission to administer.

1988 c41 s2

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Powers respecting plans

17. The commission may take action that it considers necessary for the establishment and administration of

(a) a plan of medical care insurance for the residents of the province; and

(b) dental programs and other services related to the health of the public for the residents of the province.

1988 c41 s2

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Duty to report to minister

18. The commission shall, through its chairperson, report to the minister, when the minister so requires, with respect to its progress and activities and submit to the minister the reports and estimates that he or she may require.

RSN1970 c265 s20

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Duty of residents to register

19. (1) Every resident other than a dependant shall, where required by the regulations, register himself or herself and the resident's dependants at the place, in the manner and form and at the times that may be prescribed by the regulations.

(2) A resident who fails to comply with subsection (1) or who wilfully withholds information necessary for the purposes of registration or who wilfully gives false information to the person registering him or her is guilty of an offence and liable on summary conviction to a fine not exceeding $100 and, in default of payment, to imprisonment for a term not exceeding 6 months, or to both a fine and imprisonment.

RSN1970 c265 s21

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Actions barred

20. An action shall not lie against a physician providing insured services in respect of information provided to the commission with respect to an insured service provided to a beneficiary.

RSN1970 c265 s22

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Physicians to submit accounts

21. (1) Where a participating physician renders an insured service to a beneficiary, the physician shall submit his or her account for the service to the commission, together with the information that is required to substantiate the claim upon the forms that are prescribed by the commission for that purpose.

(2) The physician shall supply further patient information where the commission requires it to clarify or substantiate the physician's claim.

(3) A physician may, in writing, notify the commission of his or her election to collect payments in respect of insured services rendered by the physician to residents otherwise than from the commission.

(4) Where a physician makes an election under subsection (3) within 1 month from the date on which he or she 1st becomes entitled to practise medicine in the province, the election shall have effect on and from the date when the physician becomes entitled to practise medicine in the province.

(5) An election under subsection (3) shall have effect on and from the 1st day of the 1st month beginning after the expiration of 60 days after the date on which the commission receives the notice of election.

(6) A physician who has made an election under subsection (3) may revoke the election by written notice to the commission.

(7) A revocation of election under subsection (6) shall have effect on and from the 1st day of the 1st month beginning after the expiration of 60 days after the date on which the commission receives the notice of revocation.

RSN1970 c265 s23; 1988 c41 s3

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Payment to physicians

22. (1) Where a participating physician provides insured services to beneficiaries, he or she shall accept payment from the commission in respect of the insured services so provided, and the physician shall accept the payment as payment in full for those services.

(2) The minister may make regulations for the purpose of this subsection authorizing a participating physician providing services to beneficiaries to make the charges against beneficiaries receiving insured services that are specified in the regulations.

(3) Where a participating physician who is a specialist provides insured services to a beneficiary who has not been referred to the specialist by

(a) a physician; or

(b) by a person authorized by the commission to refer a beneficiary to a specialist,

the participating physician may make charges against that beneficiary in excess of the amount paid or payable to him or her by the commission to the extent of charges authorized by regulations made by the commission for the purpose of this subsection provided he or she so informs the beneficiary before providing the insured services.

RSN1970 c265 s24; 1983 c84 s3

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Rights

23. Nothing in this Act or in the regulations shall

(a) interfere with or restrict the right of a beneficiary to select the physician, or other person providing services, from whom he or she will receive insured services;

(b) interfere with or restrict the right of a physician, or other person providing services, to accept or refuse to accept a patient who is a beneficiary; or

(c) interfere with or restrict the right of a physician, or other person providing services, to make charges for insured services provided to a patient who is not a beneficiary.

RSN1970 c265 s25

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Payment for services

24. (1) On and from the day fixed by the Lieutenant-Governor in Council for the purpose, the commission shall, under this Act and the regulations, make payment for the providing of insured services to beneficiaries.

(2) Where a participating physician provides insured services to beneficiaries, the commission shall make payment to him or her for the services, but where a participating physician performs professional services for the government or other public authority or body that has received the prior approval of the minister, in addition to the provision of insured services to beneficiaries, the commission may, upon being satisfied that the participating physician is receiving remuneration for the provision by him or her of those professional services, enter into an arrangement with the government or other public authority or body providing for the payment to it for the insured services so provided to beneficiaries, and the commission shall make the payment in accordance with the arrangements made.

(3) Where an insured service is provided in the province to a beneficiary by other than a participating physician, the commission shall make payment to the beneficiary in respect of that insured service.

(4) Where an insured service is provided in the province to a person who is an insured resident of another jurisdiction in Canada by other than a participating physician, the responsibility for payment will not rest with the medical care plan of this province.

(5) The right of the beneficiary to receive payment from the commission in respect of insured services provided in the province by other than a participating physician is a contractual right and the beneficiary is entitled to receive payment from the commission in respect of those services in an amount equal to the amount payable, for similar services, to a participating physician by the commission under the regulations.

RSN1970 c265 s26; 1971 No39 s4; 1973 No24 s2; 1974 No41 s4; 1988 c41 s4

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Right not to be assigned or attached

25. The right of a beneficiary to receive payment from the commission in respect of insured services provided in the province to a beneficiary shall not be assigned, and a sum owing in respect of the right shall not be charged or attached, and a transaction purporting to assign the right or to charge or attach the sum is void.

RSN1970 c265 s27

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Non-application of Act

26. Where a physician providing insured services is not a participating physician, and the physician provides an insured service to a beneficiary, the physician is not subject to this Act or the regulations relating to the provision of insured services to beneficiaries or the payment to be made for the services except that he or she shall

(a) before providing the insured service, if he or she wishes to reserve the right to charge the beneficiary for the service an amount in excess of that payable by the commission under this Act, inform the beneficiary that he or she is not a participating physician and that the physician may so charge the beneficiary; and

(b) provide the beneficiary to whom the physician has provided the insured service with the information required by the commission to enable payment to be made under this Act to the beneficiary in respect of the insured service.

RSN1970 c265 s28

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Insurance fund

27. (1) The commission shall establish a fund to be known as the Newfoundland Medical Care Insurance Fund which shall be separate and distinct from the Consolidated Revenue Fund.

(2) All money and revenue of the commission, including contributions by Canada under the Medical Care Act (Canada) received through the province, shall be deposited to the credit of the Newfoundland Medical Care Insurance Fund, and the commission shall have full authority to administer all of the money deposited to the credit of the fund for the purposes and objects of this Act.

(3) All payments for insured services and in connection with the administration of this Act, including the costs of registration under section 19, shall be made from this fund.

(4) The Lieutenant-Governor in Council shall, from money voted by the Legislature, make available and pay to the commission the additional funds that may be necessary for the proper carrying out of its powers, functions and duties.

(5) Nothing contained in this Act shall prevent the commission from receiving and accepting money that may be paid to it by grant, contribution or reimbursement from any source, if it receives the money to help it in the attainment of its objects or in the proper exercise of its powers, functions or duties or to reimburse it for disbursements made by it or on its behalf.

RSN1970 c265 s29; 1974 No41 s3

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Agreement with Government of Canada

28. The minister, with the approval of the Lieutenant-Governor in Council, may, on behalf of the government of the province, enter into an agreement with the Government of Canada respecting insured services, that the Government of Canada is authorized to enter into under an Act of the Parliament of Canada, upon the terms and conditions that may be agreed upon.

RSN1970 c265 s30

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Non-liability of minister

29. (1) An action shall not lie against the minister or the commission with respect to an act or omission, relating to the providing of insured services under this Act, of a physician or other person providing those services or of a person in the employ or acting on behalf of a physician or other person.

(2) An action shall not lie against a member of the commission or a member of a medical or other committee serving the commission in a consultative or advisory capacity in respect of anything done or omitted to be done in good faith in the performance of the duties of the member.

RSN1970 c265 s31; 1988 c41 s5

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Financial year

30. The financial year of the commission shall correspond to the financial year of the province.

RSN1970 c265 s32

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Yearly budgets

31. The commission shall, not later than November 30 in every financial year, prepare and adopt and submit to the minister a budget containing estimates of all sums required during the next financial year for the purposes of the commission and in each budget there shall be set out the estimated revenue and expenditure in the detail and in the form that the minister prescribes.

RSN1970 c265 s33

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Budget may be revised

32. Where in a financial year it appears that the actual revenue or expenditure of the commission is likely to be substantially greater or less than estimated in its budget, the commission may, and where required by the minister shall, submit to him or her a revised budget containing the particulars required under section 31, and, in addition, the particulars of actual receipts and payments and outstanding liabilities up to the date of submission.

RSN1970 c265 s34

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Minister's approval

33. (1) The minister may approve or disapprove a budget submitted by the commission.

(2) Where the minister requires the commission to submit a revised budget under section 32, he or she may notify the commission that the approval given in respect of a budget previously submitted is withdrawn and in each case shall state the date upon which the withdrawal takes effect.

RSN1970 c265 s35

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Commission limited to budget

34. Except with the approval of the minister, the commission shall not in a year incur, enter upon, or contract or become liable for an expenditure or indebtedness beyond or in excess of the estimated amount of expenditure set out in an approved budget.

RSN1970 c265 s36

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Commission to submit report to minister

35. The commission shall, not later than September 30 in each year, prepare and submit to the minister a financial statement setting out the assets and liabilities of the commission and the receipts and expenditures of the commission for the previous financial year, together with a report concerning the work of the commission during the previous financial year, and the statement and report shall be laid before the Legislature within 15 days after they are submitted to the minister if the Legislature is then sitting, and, if it is not, then within 15 days after the beginning of the next session.

RSN1970 c265 s37

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Financial statement

36. The financial statement referred to in section 35 shall be signed by the chairperson and the executive director of the commission and certified by the auditor general and shall have attached to it a report which the auditor general may have made to the commission.

RSN1970 c265 s38

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Minutes to be kept

37. The chairperson of the commission shall keep regular minutes of the meetings of the commission and shall ensure that full and complete books of account and records are kept.

RSN1970 c265 s39

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Audit of accounts

38. (1) The auditor general shall audit the accounts of the commission and has authority to call for and shall be supplied by the commission with all books and vouchers which he or she thinks necessary for the audit.

(2) Where the auditor general makes an interim examination of the accounts of the commission during the course of a financial year, he or she shall submit a report of the examination to the chairperson of the commission and to the minister, and the minister shall lay the report before the Legislature with the statement and report referred to in section 35.

RSN1970 c265 s40

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Penalties for false statements

39. (1) A physician providing insured services, to a beneficiary, who wilfully makes a false statement in a report, form or return required to enable a payment to be made under this Act or the regulations is guilty of an offence and liable on summary conviction to a fine of not less than $100 nor more than $500.

(2) A person, other than a physician providing insured services to a beneficiary, who wilfully makes a false statement in a report, form or return prescribed by or required for the purposes of this Act or the regulations is guilty of an offence and liable on summary conviction to a fine of not less than $100 nor more than $500.

RSN1970 c265 s41

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Notification of default

40. (1) Where, after an inquiry, the commission finds or has reasonable cause to believe that

(a) a participating physician has been convicted of an offence under this Act;

(b) a participating physician has submitted false statements in a report, form or return required to enable a payment to be made under this Act;

(c) the pattern of practice of a participating physician of a certain class or specialty in the whole or an area of the province deviates significantly from the average pattern of practice of physicians of a similar class or specialty in the whole or an area of the province as defined in the regulations made under section 48; or

(d) a claim for payment is made by a participating physician for services which are not insured services,

the commission shall notify the physician of its finding or belief in writing by registered mail and shall state the reasons for that finding or belief in the notification.

(2) Within 30 days from the date of the notification referred to in subsection (1), the physician may make written representations to the commission upon matters contained in the notification, and may in the representation request a hearing by a committee of the commission.

(3) After considering the written representations made by a physician under this section, the commission shall either

(a) revoke allegations made in the notification sent under subsection (1), and notify the physician accordingly; or

(b) consult with the medical association, the dental association or the optometrists association by referring to it in writing the allegations raised by the commission in the notification made under subsection (1), and require the association to make those representations that it may consider appropriate in the circumstances within 14 days from the date of dispatch of the written referral.

(4) Where a hearing is requested under subsection (2), the commission shall, except in the case of a revocation of the allegations under paragraph (3)(a), give the physician an opportunity of appearing before and being heard by a committee of the commission consisting of not more than 3 members, 1 of whom shall be a physician, with power to direct the procedure adopted at the hearing, which procedure shall permit the physician to be represented by a solicitor or other person, to lead evidence from witnesses and to produce documents, and for the purpose of the hearing each member of the committee shall be considered to be a commissioner and shall have all the powers of a commissioner appointed under the Public Inquiries Act.

(5) The subcommittee of the commission appointed under subsection (4) shall make a report to the commission containing its findings and the report shall also contain recommendations.

(6) Except in the case of a revocation of allegations under paragraph (3)(a), the commission may, with the approval of the minister, and after considering

(a) the representation made to it by the medical association, the dental association or the optometrists association pursuant to the consultation under paragraph (3)(b); and

(b) where a hearing is held by a committee of the commission under subsection (4), the report of that committee,

make an order which may include 1 or more of the following:

(i) withholding from a physician, who is a participating physician, all or a part of the money which at the date of the order has been claimed to be due in respect of insured services under subsection 22(2), but which, following the notification and procedure set out under this section, have been found by the commission to be in respect of services to which paragraphs (1)(c) and (d) of this section applies,

(ii) estimating and imposing on the physician a penalty of an amount not exceeding the amount of a loss sustained by the Crown because of a payment to the physician or the beneficiary for services which are, or are related to, the subject of the notification under subsection (1), together with 10% of the amount of the loss, and for the purposes of this paragraph the estimate shall, subject to proof to the contrary or appeal in accordance with section 42 be considered to be actual loss so sustained,

(iii) considering the physician to be a physician who is not a participating physician for the purposes of this Act either permanently or for the period that may be stated in the order, and

(iv) reducing the amount payable to a participating physician for insured services by the percentage and in respect of the period that may be specified in the order.

(7) An order made under subsection (6) is in addition to another penalty or fine that may be prescribed under this Act.

(8) An order made under subsection (6) shall be served by the commission by registered mail upon the physician affected by it, and a copy of the order shall be sent by the commission to the medical association, the dental association or the optometrists association.

(9) A physician in respect of whom an order is in force under paragraph (6)(iii) shall, for the purposes of this Act, be considered to be a physician who is not a participating physician, and subsection 22(3) shall apply to all beneficiaries, in respect of whom insured services are provided by that physician.

1971 No39 s5; 1975-76 No51 ss2&3; 1983 c84 s4

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Withholding of payments

41. Where a notification is made by the commission under subsection 40(1), the commission may withhold from payments which would, apart from allegations to the contrary contained in the notification, be due to be paid to a participating physician under subsection 22(2) for the provision of insured services, up to the amount which, in the opinion of the commission, constitutes the value of the subject matter raised by the notification, but only until the matter has been finally determined, subject always to the right of permanent retention or withholding for the purposes of compliance with an order made under paragraphs 40(6)(i) and (ii).

1971 No39 s5; 1975-76 No51 s2

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Appeal

42. (1) A physician aggrieved by an order of the commission under section 40 may, within 60 days from the date of the order, appeal against the order to a judge of the Trial Division by filing a notice of appeal in the office of the Registrar of the Supreme Court, and by serving a copy of the notice of appeal on the minister and on the commission, addressed to the chief executive officer of the commission.

(2) Notwithstanding a rule or practice to the contrary, the notice of appeal shall

(a) set out in detail the allegations of the appellant and the grounds upon which the order is appealed against; and

(b) be signed by the appellant or his or her solicitor.

(3) The appellant shall within 14 days after service of the notice of appeal under this section, apply to the judge for the appointment of a day for the hearing of the appeal and shall not less than 14 days before the hearing serve upon the minister and upon the commission, addressed to the chief executive officer of the commission, a written notice of the day appointed for the hearing.

(4) The minister shall cause the commission to produce to the judge hearing the appeal all papers and documents in its possession affecting the subject matter of the appeal.

(5) The judge shall hear the appeal and the evidence brought forward before him or her by the appellant, the Crown and the commission in a summary manner, and after considering all aspects which the judge, in his or her discretion considers appropriate to consider in the interests of justice, equity and fairness, decide the matter of the appeal by

(a) upholding, amending or revoking the order; or

(b) making another decision which he or she considers to be appropriate in the circumstances,

and with power also to make orders as to costs for or against the appellant or the Crown and to fix the amount.

(6) An appeal may be taken from an order or decision of the judge to the Court of Appeal upon a point of law raised on the hearing of the appeal, and the rules governing appeals to that court from an order or decision of a judge of the Trial Division apply to appeals under this subsection.

(7) The filing of a notice of appeal under this section or the appeal itself shall not affect the order of the commission which shall remain in force pending the outcome of the appeal.

1971 No39 s5; 1975-76 No51 s2;
1986 c42 Schs A&B

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Recovery of cost of services from wrongdoer

43. (1) An injured or disabled person, in this section referred to as the "insured person", who receives insured services in respect of an injury or disability caused or contributed to by or resulting from the fault, negligence or other wrongful act or omission of another person, in this section referred to as the "tortfeasor", has the same right to recover the cost of those insured services from the tortfeasor as he or she would have had if the person had himself or herself been required to pay for the services.

(2) An insured person who, under subsection (1), recovers from another person the whole or a part of the cost of insured services shall, on recovery from that other person, pay to the commission the amount recovered and the commission may, if the amount so recovered is not paid to it within a reasonable time, recover the amount from the insured person as a debt due the Crown.

(3) Where the cost of insured services referred to in subsection (1) is paid, or an agreement has been entered into covering payment, by the commission to a person or physician or where the services are provided by a person employed in the Department of Health, the commission is subrogated to all rights of recovery of or on behalf of the insured person against the tortfeasor and may bring an action in his or her own name or in the name of the insured person to enforce those rights against the tortfeasor in respect of the cost of the insured services.

(4) The rights conferred upon the commission by subsection (3) shall not be considered to restrict other rights of recovery of the insured person in respect of the injury or disability referred to in subsection (1) for loss or damage not the subject of insured services and if the insured person starts an action in respect of that loss or damage he or she shall include a claim on behalf of the commission for the cost of the insured services provided to the insured person.

(5) It is not a defence to an action brought by the commission under subsection (3) that a claim for damages has been adjudicated upon unless that claim included a claim for the sum paid for insured services, and it is not a defence to an action for damages for personal injuries brought by an insured person that an action taken by the commission under subsection (3) has been adjudicated upon.

(6) A release or settlement of claim which includes the cost of insured services is not effective unless the commission has consented to the release or settlement or unless the commission is satisfied with the provisions of the release or settlement.

(7) The costs of an action by or on behalf of an insured person in which a claim has been included on behalf of the commission under subsection (4) shall be borne by the commission in the same proportion as the claim of the commission for the cost of insured services provided bears to the total claim by or on behalf of the insured person in the action.

(8) If within 2 months after the last act or omission which caused the injury or disability of an insured person an action has not been started by or on behalf of that person under subsection (1) for the recovery of damages arising out of the injury or disability, the commission upon service of notice on the insured person may start an action in its own name or in the name of that person for the recovery of the cost of the insured services, and before trial of the action that person may join in the action another claim arising out of the same occurrence upon the conditions as to costs or otherwise that to the court may seem just and may in that case effect settlement of that claim.

(9) A liability insurer shall pay to the commission an amount referable to a claim for recovery of the cost of insured services that would otherwise be payable to an insured person and payment of that amount to the commission discharges the liability of the insurer to pay that amount to the insured person or to a person claiming under or on behalf of the insured person.

(10) For the purpose of subsection (9) a "liability insurer" means a person regularly engaged in the business of underwriting risks in respect of negligence.

(11) For the purposes of this section,

(a) "insured services" means insured services as defined in the regulations made under this Act;

(b) "participating province" means a participating province as defined by the Medical Care Act (Canada); and

(c) the cost of insured services provided is,

(i) in the province, or a participating province, the cost as established by the commission, and

(ii) elsewhere than in the province or a participating province, the cost calculated at a rate which, in the opinion of the commission, is fair having regard of the services provided.

RSN1970 c265 s42

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Regulations

44. The Lieutenant-Governor in Council may make regulations

(a) respecting the establishment of the Newfoundland Medical Care Insurance Fund and the administration of the fund by the commission;

(b) defining what medical services in the province provided or authorized by a physician are insured services for the purposes of this Act;

(c) prescribing what services are not insured services for the purposes of this Act;

(d) notwithstanding anything in this Act contained, adapting, modifying, qualifying or altering the provisions of this Act to meet the requirements of the Medical Care Act (Canada) for the purpose of rendering the medical care insurance plan of the province one in respect of which a contribution is payable by Canada under the Medical Care Act (Canada); and

(e) generally, to give effect to the purpose of this Act.

RSN1970 c265 s43

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Regulations by minister

45. The minister may make regulations

(a) to prevent unnecessary use or abuse of insured services;

(b) providing for the investigation of complaints of violations of this Act or regulations made under this Act or of an order made under this Act or the regulations;

(c) providing for the holding of inquiries into a complaint referred to in paragraph (b) or into the operation of this Act or into a charge or complaint that a person has contravened this Act or the regulations made under this Act, or has made a false statement in a form, return, account or statement required to be completed or made under this Act, or into another matter arising in the administration of this Act, and providing that the person holding the inquiry shall have the powers that may be conferred upon a commissioner under the Public Inquiries Act, including the power to take evidence under oath or affirmation;

(d) prescribing the waiting period that must elapse before a resident becomes a beneficiary and the other conditions to be observed by a resident in order that he or she may qualify as a beneficiary;

(e) defining what residents are beneficiaries for the purposes of this Act;

(f) providing for the furnishing to the Minister of National Health and Welfare of Canada of the information and at the times that the minister may require for the purposes of the Medical Care Act (Canada);

(g) respecting the registration of residents for the purposes of this Act;

(h) defining

(i) the terms and conditions relating to the provision of dental and other health related services, and

(ii) to what extent and under what circumstances dental and other health related services shall be paid for by the commission;

(i) respecting the policies, procedures and requirements for the operation of a program or activity which the commission supervises, directs or controls; and

(j) generally, to give effect to the purpose of this Act.

RSN1970 c265 s44; 1988 c41 s6

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Offence and penalty

46. The Lieutenant-Governor in Council may, in regulations made under section 44, and the minister may, in regulations made under section 45, provide that a person who contravenes a specified provision of the regulations is guilty of an offence and may prescribe penalties to which the person is liable, on summary conviction, for failing to comply with or otherwise contravening the provision of the regulations.

RSN1970 c265 s45

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Date of effect of regulations

47. Regulations made under section 44 or 45 may be made with retroactive effect.

RSN1970 c265 s46

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Regulations by commission

48. (1) Subject to the approval of the minister, the commission may make regulations

(a) for the purpose of establishing and administering a plan of medical care insurance for the residents of the province;

(b) prescribing the arrangements to be made for payment to physicians, and to other persons providing services, for providing insured services to beneficiaries;

(c) providing for the establishing, maintaining and altering of lists of physicians and other persons for the purposes of payment for insured services provided to beneficiaries, those lists to be for the use of the commission in the administration of this Act and not for general publication;

(d) prescribing, by reference to professional or other scales of fees, the rates of payments to be made under this Act in respect of insured services provided to beneficiaries by physicians, with power to prescribe

(i) varying rates for different classes of physicians or for the same class of physicians in different circumstances or locations, and

(ii) payments by scale or reference to scale either on a fixed level or on a diminishing or increasing basis throughout or at a point on the scale;

(e) governing the method of assessing accounts submitted by physicians and other persons;

(f) following consultation with the medical association, the dental association and the optometrists association prescribing a formula for the determination of the average pattern of practice for the whole or an area of the province and defining the words "pattern of practice" for the purposes of paragraph 40(1)(c);

(g) respecting the manner and form in which accounts shall be rendered and in which other information required in connection with the accounts shall be submitted;

(h) respecting the manner and form in which payments to physicians and other persons shall be made under this Act;

(i) respecting the manner in which persons may be identified as beneficiaries;

(j) governing the calling of meetings of the commission and the conducting of business at the meetings;

(k) governing the appointment of committees and subcommittees and prescribing the duties of committees and subcommittees;

(l) fixing the remuneration of members of committees and subcommittees for attending meetings and otherwise carrying out their prescribed duties;

(m) prescribing, for the purposes of the definition contained in paragraph 2(k), what persons are entitled to provide insured services;

(n) prescribing forms for use under this Act and regulations made under this Act; and

(o) generally, to give effect to the purpose of this Act.

(2) The commission may, in regulations made under subsection (1), provide that a person who contravenes a specified provision of the regulations is guilty of an offence and it may prescribe penalties to which the person is liable, on summary conviction, for contravening the regulations.

(3) Where regulations made under this section provide for the imposition of a penalty under subsection (2), the regulations shall be subject to the approval of the Lieutenant-Governor in Council and may be made with retroactive effect.

(4) Regulations made under this section shall have effect from the date of the minister's approval or from the date that may be specified in the regulations.

(5) Rates of payments and the method of assessing accounts prescribed under paragraph (1)(d) shall be reviewed by the commission with the medical association at least every 3 years.

RSN1970 c265 s47; 1971 No39 s6;
1975-76 No51 s4; 1983 c84 s5

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Power to establish plans

49. (1) The commission may, by regulations made in accordance with subsection (3), establish a plan for voting members of the commission or employees of the commission, providing for

(a) the payment of a pension, annuity, allowance or gratuity to the person or to the person's beneficiaries or dependants on

(i) his or her retirement at a stated age or on account of permanent disability,

(ii) his or her illness or death before or after retirement, or

(iii) the termination of his or her employment; and

(b) group, life, sickness or accident insurance or other health and welfare benefits for the persons; or

(c) the payment or grant of the pensions, annuities, allowances, gratuities, other payments or benefits referred to in paragraphs (a) and (b); and

(d) the terms and conditions upon which the pensions, annuities, allowances, gratuities, other payments or benefits referred to in paragraphs (a) and (b) will be paid or granted; and

(e) the payment of contributions towards the plan to be made by the persons to whom it applies and the amounts of the contributions,

and different pension or other plans may be established for the voting members of the commission and for different classes of employees.

(2) Subject to the approval of the Lieutenant-Governor in Council, the commission

(a) shall decide whether the pensions, annuities, allowances, gratuities, other payments or benefits made available under a plan established under this section shall be paid or granted out of the general funds of the commission or in another manner; and

(b) may enter into a contract or undertaking and do all things necessary to give effect to a decision made in accordance with this subsection.

(3) The commission may, subject to the approval of the Lieutenant-Governor in Council, make regulations to

(a) provide for the matters referred to in subsection (1);

(b) prescribe the class of persons to which a pension or other plan established under this section shall apply, with or without giving to the members of the class the right exercisable, within a period to be prescribed in the regulations, to elect to be excluded from the plan; and

(c) provide for counting towards the credit of a person under a pension or other plan all or a part of the service done by that person

(i) as an established or unestablished civil servant as defined by the Civil Service Act, or

(ii) in another capacity approved for the purpose by the Lieutenant-Governor in Council.

RSN1970 c265 s48

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Agreements

50. (1) The commission may enter into an agreement with another jurisdiction in Canada with respect to the reciprocal processing of accounts for insured services as prescribed in the regulations, when these services are provided in other than the home jurisdiction of the insured resident.

(2) Under an agreement referred to in subsection (1), claims for out-of-province physician services will be sent to the medical care plan in the jurisdiction where the services are rendered and will be processed and paid by that jurisdiction with reimbursement to be made by the jurisdiction in which the person lives.

(3) An agreement referred to in subsections (1) and (2) may provide that certain services specified in a schedule to the agreement are excluded from the reciprocal processing arrangement.

(4) Nothing in this Act or the regulations or an agreement referred to in subsection (3) shall impose on the commission an obligation to pay, on behalf of a person for a service which is not an insured service as prescribed in the regulations.

(5) Unless otherwise provided the provisions of this Act and the regulations that apply to services for beneficiaries also apply to services for insured residents of jurisdictions participating in a reciprocal processing arrangement.

(6) Subject to the approval of the Lieutenant-Governor in council, the minister may, and the commission may, enter into an agreement for which no specific provision is made elsewhere in this Act or in the regulations, which he or she or it considers necessary or desirable for the purpose of exercising or discharging his or her or its powers, duties or functions.

(7) The minister may, and the commission may, implement an agreement made under this Act or the regulations.

RSN1970 c265 s49; 1988 c41 s7

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Consultation with medical association

51. The medical association, the dental association and the optometrists association shall be consulted by the minister or the commission with reference to the rates of payments to be made under this Act in respect of insured services provided to beneficiaries by physicians, the manner and form in which the payments to physicians shall be made and changes in connection with payments and, where the minister or the commission considers it necessary, with reference to general questions of principle concerning the practise of medicine.

RSN1970 c265 s50; 1971 No39 s7; 1983 c84 s6

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Plan to be non-profit

52. The plan of medical care insurance under this Act shall be administered and operated on a non-profit basis.

RSN1970 c265 s51

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Offence

53. (1) A person who contravenes this Act, or the regulations that are required to be published in the Gazette, is guilty of an offence and where no penalty is specifically provided in this Act or the regulations, liable on summary conviction in the case of a 1st conviction to a fine not exceeding $100 and in the case of a 2nd or subsequent conviction for a similar offence to a fine not exceeding $200 and, in either case, in default of payment to imprisonment for a term not exceeding 3 months.

(2) For the purpose of subsection (1) a conviction is not considered to be a 2nd or subsequent conviction unless it is in respect of an offence committed within 12 months after a prior offence.

RSN1970 c265 s52

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Members of House of Assembly

54. Notwithstanding the Legislative Disabilities Act, where a member of the House of Assembly receives payment in respect of insured services his or her seat does not become vacant, nor does the member become disqualified from sitting or voting as a member of the House of Assembly, by reason only of the payment, and, when otherwise qualified, no person receiving the payment is ineligible to be elected and to sit and vote as a member of the House of Assembly.

RSN1970 c265 s53

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