Bill 8 Public Sector and MPP Accountability and Transparency Act, 2014

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1 Legislation Update Bill 8 Public Sector and MPP Accountability and Transparency Act, 2014 Second reading debate on Bill 8, the Public Sector and MPP Accountability and Transparency Act, 2014 began on October 29, 2014, and is expected to resume on November 17, Bill 8 is an omnibus bill with 11 schedules that establish one new Act and amend various other statutes. If passed, Schedules 1 and 5 of the Bill will have specific implications for Community Care Access Centres (CCACs). Schedule 1 creates the Broader Public Sector Executive Compensation Act, 2014, which gives the government the ability to establish compensation frameworks for broader public sector employers, including CCACs. Schedule 5 amends the Excellent Care for All Act, 2010, to create a new patient ombudsman, with the authority to receive and investigate complaints from patients and former patients of CCACs, hospitals and long term care homes. The Patient Ombudsman will be appointed by the Lieutenant Governor in Council and will be employed by Health Quality Ontario (HQO). Schedule 1. Broader Public Sector Executive Compensation Act, 2014 If passed, the Broader Public Sector Executive Compensation Act will give the Lieutenant Governor the authority to make regulations establishing compensation frameworks for designated employers and designated executives. The compensation frameworks would set mandatory restrictions on the compensation that may be provided to designated executives, including maximum compensation levels. The new Act comes into force on a date to be named by proclamation of the Lieutenant Governor. The compensation frameworks will come into effect on the date(s) prescribed in the regulations. The designated employers include: Community Care Access Centres, Hospitals, School boards, Colleges and Universities, Hydro One Inc., and its subsidiaries, Independent Electricity System Operator, the Ontario Power Authority and Ontario Power Generation Inc. And its subsidiaries, and November 12, 2014

2 Other authorities, boards, commissions, committees, corporations, councils, foundations or organizations that may be prescribed. The designated executives include employees or office holders that receive annual cash compensation of $100,000 or more and are: The head of the designated employer regardless of title, Vice presidents, chief administrative officers, chief operating officers, chief financial officers, chief information officers or any other executive position or office with the designated employer, regardless of the title of the position or office, and School board directors of education or supervisory officers. The Lieutenant Governor in Council may make regulations designating additional employees or office holders as designated executives. Designated employers are required to comply with any prescribed compensation frameworks. Any agreements providing for compensation in excess of the prescribed frameworks are deemed void, with one exception. If a designated executive has an existing compensation plan that contains an element that exceeds the prescribed framework, the existing plan remains in effect. However, no increases are permitted that exceed the authorized compensation plan. Compensation for new hires must be established within the authorized compensation framework. Similarly, for any designated executive that accepts a new executive position or office with the designated employer, compensation must be set within the authorized compensation plan. Provisions in the Bill prohibit restructuring or changing the titles of positions or offices to circumvent the parameters set out in the authorized compensation plan. Section 5 gives Management Board of Cabinet the authority to issue directives requiring designated employers to provide information related to compensation or other payments that designated executives are entitled to. This information may include: Compensation plans, policies, studies, guidelines and programs, and Salaries, salary ranges, benefits, perquisites, discretionary and non discretionary payments, payments payable on or in connection with termination, performance plans, incentive plans, bonus plans, allowances and any other form of remuneration. The Minister may issue directives that require designated employers to submit compliance reports and the Minister has the authority to appoint a public accountant to audit compliance. Any payment made by a designated employer in excess of what is authorized is considered an overpayment and is subject to repayment to the Crown. November 12, 2014 Page 2

3 The Bill establishes penalties for: Wilfully failing to provide a report, statement or attestation, Wilfully making a false report, statement or attestation, or Wilfully obstructing an auditor appointed by the Minister to determine compliance. This Act prevails over other Act and regulations, including the Broader Public Sector Accountability Act, Schedule 5. Amendments to the Excellent Care for All Act, 2010 If passed, amendments to the Excellent Care for All Act, 2010 (ECFAA) will add a new definition of health sector organization 1 and a new section 13 that establishes the requirement for the Lieutenant Governor in Council to appoint a patient ombudsman, who is to be employed by HQO. The functions of the patient ombudsman are to: Receive and respond to complaints from patients and former patients of a health sector organization, and any other persons that may be prescribed; Facilitate the resolution of complaints made by patients and former patients of a health sector organization, and any other persons that may be prescribed; Undertake investigations of complaints made by patients and former patients of a health sector organization, and any other persons that may be prescribed; Undertake investigations of health sector organizations on the patient ombudsman s own initiative; Make recommendations to health sector organizations following the conclusion of investigations; and Do anything else provided for in the regulations. Health sector organization is defined to include: Community Care Access Centres, Hospitals, Long term care homes, and Any other publicly funded organization that may be prescribed in regulations. Patient or former patient is defined to include: A client or former client of a CCAC, 1 NOTE: The definition of health care organization in section 1 of ECFAA remains unchanged at this time, and still only includes hospitals. The broader requirements for health care organizations have not yet been expanded to include CCACs. November 12, 2014 Page 3

4 A patient or former patient of a hospital, A resident or former resident of a long term care home, Any other individual provided for in the regulations, and A person with the authority to consent to the treatment or another matter on behalf of that patient or former patient in accordance with the Health Care Consent Act, 1996, in respect to patients or former patients who is or was incapable with respect to decisions related to treatment or other matters. Patients or former patients may make a complaint in writing to the patient ombudsman about the actions or inactions of a health sector organization that relate to their care or care experience. The patient ombudsman is tasked with working with patients, former patients, other prescribed persons, the health sector organization and, when appropriate, the LHIN to facilitate a resolution to the complaint. A number of exceptions are identified, for example: The complaint is trivial, frivolous, vexatious or not made in good faith, The patient or former patient has not sought to resolve the complaint directly with the health sector organization, The patient or former patient does not have sufficient personal interest in the matter of the complaint, or The complaint relates to a matter that is within the jurisdiction of another body or person, or is the subject of a proceeding. In the event that the patient ombudsman determines that he/she will not attempt to facilitate a resolution, the patient or former patient must be advised in writing. If a resolution to the complaint cannot be facilitated, the patient ombudsman has the authority to undertake an investigation. The patient ombudsman also has to authority to undertake investigations of health sector organizations on his/her own initiative. The patient ombudsman has the authority to require health sector organizations to provide information and documents pertinent to an investigation. The patient ombudsman may also summon patients and employees or office holders of a health sector organization to be examined under oath. A person who is subject to the Personal Health Information Protection Act, 2004, the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information is not prevented from providing personal information or personal health information to the patient ombudsman, when the patient ombudsman requires the person to provide the information for the purposes of conducting an investigation. The patient ombudsman also has the authority to enter and inspect the premises of a health sector organization for the purposes of an investigation. November 12, 2014 Page 4

5 The patient ombudsman may make any recommendations to a health sector organization that he/she sees fit following an investigation. A copy of the recommendations is to be provided to the patient or former patient. The patient ombudsman is required to report to the Minister at least annually on his/her activities and recommendations. The patient ombudsman may also report to the LHINs on activities and recommendations as he/she deems appropriate. Reports are to be made public on HQO s website. The functions of HQO are expanded to include: To monitor and report on the performance of health sector organizations with respect to patient relations; To promote enhanced patient relations in health sector organizations through the development of, o patient relations performance indicators and benchmarks for health sector organizations, and o quality improvement supports and resources for health sector organizations with respect to patient relations; and To support the patient ombudsman in carrying out his or her functions. A brief summary of all 11 schedules of Bill 8 is provided below: Schedule 1 Schedule 2 Schedule 3 Schedule 4 Broader Public Sector Executive Compensation Act, 2014 To give the government the ability to set compensation frameworks for broader public sector executives, including executives employed by CCACs. Amendments to the Ambulance Act Establishes enhanced accountability provisions for air ambulance services. Amendments to the Broader Public Sector Accountability Act, 2010 (BPSAA) To enable the Management Board of Cabinet to issue directives requiring designated broader public sector organizations to prepare and publish business plans and any other business or financial documents that the directives may specify. CCACs are included in the definition of broader public sector organizations in the BPSAA. The government s intentions with respect to this schedule are not yet clear, other than to ensure compliance with Management Board directives and increase transparency with respect to the operation of broader public sector organizations. Amendments to the Cabinet Ministers and Opposition Leaders Expenses Review and Accountability Act, 2002 and Related Amendments To set the requirement for Cabinet Ministers, parliamentary assistants, opposition November 12, 2014 Page 5

6 Schedule 5 Schedule 6 leaders and their staff to publish their expenses. Amendments to the Excellent Care for All Act, 2010 to create the position of a patient ombudsman. Amendments to the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act To prohibit the wilful concealment, destruction or alteration of records within the scope of these Acts. Schedule7 Schedule 8 The amendments to the Freedom of Information and Protection of Privacy Act (FIPPA) in Schedule 6 address the preservation of records. There is no proposal in Bill 8 to expand the scope of the FIPPA to include CCACs, although the government has indicated that it plans to bring CCACs under FIPPA. Amendments to the Legislative Assembly Act To establish the requirement for the Speaker to post on line information about payments made to members of the Legislative Assembly. Amendments to the Lobbyists Registration Act, 1998 To strengthen provisions prohibiting the use of public funds for lobbying purposes. Lobbying is specifically defined in the Act. Schedule 9 Amendments to the Ombudsman Act and Related Amendments To expand the scope of the Ontario Ombudsman s jurisdiction to include municipalities, school boards and universities. Schedule 10 Amendments to the Provincial Advocate for Children and Youth Act, 2007 To expand the scope of the Provincial Advocate for Children and Youth to include investigations of children s aid societies and certain residential licensees. Schedule 11 Amendments to the Public Sector Expenses Review Act, 2009 To give the Integrity Commissioner the discretion to select public entities for the purpose of providing copies of expense claims, rather than requiring all public entities to do so based on prescribed timeframes. If you have questions or would like additional information, please contact: Georgina White (416) georgina.white@ccac on.ca November 12, 2014 Page 6