A 2023 update on virtual care in Canada

This article was originally published in April 2023.

In June 2021, we published an article on cross-border telemedicine with the Canadian Medical Association, containing helpful tips and best practices for health care providers seeking to enter the virtual care market in Canada.¹ In the short time since our last publication there have been many changes in this space. While we are still seeing a patchwork of rules across the provinces and territories with respect to virtual care, many different stakeholders, including physicians, patients and even the Competition Bureau of Canada, are calling on the need for uniformity, reducing barriers and increasing access to virtual care.² Much of this discussion is generated by the ever-changing provincial rules governing virtual care and the goal of improving access to healthcare services in Canada while reducing the cost burden on the public healthcare system.

Virtual care providers have continuously had to pivot and adapt to changing rules and guidelines. Prior to the COVID-19 pandemic, private virtual care services outpaced publicly funded options for virtual care. This is because virtual care was generally considered an uninsured service, allowing physicians to charge privately for the provision of these services, including through private business to consumer and business to employer models of virtual care. However, in response to the COVID-19 pandemic, many jurisdictions (including Ontario) amended their billing rules to enable physicians to bill the public healthcare system for virtual care.³ Since physicians are prohibited from charging for the provision of insured services or engaging in any “extra-billing”, private virtual care providers were forced to shift their business models to ensure compliance with changing regulatory frameworks.

Once again, virtual care providers in Ontario had to pivot to accommodate changes in the provincial governments funding and payment models for virtual care. On December 1, 2022, temporary COVID-19 billing codes expired and were replaced by a new virtual care funding framework, based on the Physician Services Agreement between the Ministry of Health and the Ontario Medical Association.⁴ Under this framework, physicians are permitted to bill OHIP 100 per cent of the in-person fee for some video visits but only if they have an ongoing or existing physician-patient relationship, such as seeing the patient in person at some point in the last two years. However, if the patient has not been seen in person by the physician, physicians may only charge $20 for a video visit and $15 for a telephone visit.  This discrepancy in funding per visit disrupted many of the business models of virtual care providers. To continue to operate, providers had to reconsider how they offer their services.

Changes have been made not only in how services are funded, but also in how providers are licensed to provide care across the country. The table below summarizes the licensing requirements for physicians and nurses when providing cross-border virtual care. 

Please note that this chart is accurate as of April 2023.

While there is currently not a consistent licensing approach across the provinces and territories, it appears we may slowly be getting closer to pan-Canadian licensure.³¹ On May 1, 2023, the Council of Atlantic Premiers recently implemented a new physician register.³² The register allows physicians who have their primary practice in an Atlantic province and who hold a licence issued by one of the four Atlantic provinces to practice in any of the four Atlantic provinces without any additional licensing requirements. Additionally, Québec has updated its licensing requirements under its Professional Code to allow physicians legally authorized to practice outside of Québec the right to provide virtual care to patients located in Québec on a limited basis, upon issuance of a special authorization, subject to restrictions.³³

On May 18, 2023, Royal Assent for Your Health Act, 2023 (Ontario) (the Act) was also received. The Act introduces as-of-right licensing, which would allow healthcare professionals who are licensed in other provinces and territories in Canada to practice in Ontario, without needing an additional approval or licence, subject to certain conditions. When the Ontario Provincial government first announced as-of-right licensing, it appeared as though it would have broad applicability and would allow for the expansion of services such as virtual care to Ontarians by healthcare professionals licensed elsewhere in Canada. However, proposed regulations under the Act released on June 9, 2023 indicate that this may not be the case. Instead, the proposed regulations restrict the applicability of as-of-right licensing by making it only available as a temporary measure to certain healthcare professionals who have applied for licensure in Ontario and who only provide professional services in or on behalf of an Ontario public hospital, the University of Ottawa Heart Institute, or a long-term care home. Stakeholders should continue to monitor the status of the Act and the proposed regulations for any changes, as many sections of the Act have not yet been proclaimed in force and the Provincial government is seeking feedback on the proposed regulations until July 9, 2023.

Tips and best practices for physicians when practicing virtual care across provincial borders

Physicians, companies, and others looking to provide virtual healthcare services should still consider and follow the tips and best practices we previously outlined. Physicians should:

• make sure virtual care is appropriate for the patient given the nature of the consult, the patient’s condition and the limitations of technology in that context;
• make sure they have liability protection and confirm the patient’s location will not impact their protection;
• be aware of the governing standards and guidelines concerning virtual care, including privacy and security, consent, documentation and online prescribing;
• track out-of-province virtual care encounters and justifications for providing such care when necessary;
• inform themselves of the local resources where the patient is located to ensure continuity of care; and
• maintain detailed and up-to-date records for all virtual care encounters in the same way in-person interactions would be documented.

Physicians and other regulated health professionals should always keep their obligations in mind when charging for uninsured services and/or setting fees for their services. There are both legislative and College policy requirements that dictate how health care providers should charge for their services and how they can be compensated.

Despite the varying landscape, we expect that virtual care is here to stay in Canada, with room to grow and creative ways of offering virtual care services. In one survey, 70 per cent of respondents said they believe virtual care improves patient access and enables quality care and efficient care for patients.³⁴ The Canadian Medical Association reported that in May 2020, 91 per cent of Canadians surveyed were satisfied or very satisfied with their virtual care, and among those who consult a physician once a year, half would prefer virtual care to be their first point of contact.³⁵

Special thanks to BLG articling student Bailey McMaster for her research assistance.