Michelle Gamage, Local Journalism Initiative Reporter, The Tyee

Some physiotherapy clinics are warning that recent updates to ICBC’s health-care services terms could reduce the recovery care for people hurt in car crashes.

On Dec. 10, ICBC sent an email updating health-care providers it works with about a new way clients could search for eligible clinics.

In the fifth paragraph ICBC said it was “introducing our health care services terms.”

ICBC says the changes will help streamline direct billing services for clinics. But two critics worry they could increase the Crown corporation’s access to sensitive client information, let ICBC dictate how a patient’s injury is treated and, potentially, give ICBC control over a patient’s records. While ICBC rejects this, the critics say vague wording in the updates leaves the door open to overstep.

The changes will apply to providers of acupuncture, chiropractic, counselling, kinesiology, registered massage therapy, physiotherapy and psychology.

Clinics that were pre-approved to direct bill ICBC — almost all clinics accepting ICBC clients — were automatically affected by the new service terms, said Martyna Wegner, manager of Tess Health Clinic in Vancouver, previously called Sunset Physiotherapy. A patient can also choose a clinic not pre-approved for direct billing with ICBC, pay the clinic and then get reimbursed by ICBC later. These changes would not apply to those clinics.

“We would all expect, if it’s a big change, that they would at least require us to sign, approve, agree or read the terms and agree to something like that. But there’s nothing. Just that ‘this information is changing, you’re going to be a part of it as you’re already a part of it,’” Wegner said.

The Tyee spoke with Wegner and physiotherapist Luka Myftiu, who works at South Fraser Physiotherapy, regarding their concerns about the updates.

Both say the vague wording creates the opportunity for ICBC to greatly increase the authority it has over clinics.

The Tyee brought these concerns to ICBC chief enhanced care officer Perry Strauss, who said the changes are designed to streamline direct billing between ICBC and the clinics it works with, not increase the Crown corporation’s authority.

ICBC spokesperson Brent Shearer said the Crown corporation has been working with regulatory colleges for a year on the changes.

The BC Association of Kinesiologists, which is the regulatory body for kinesiologists, said it has not heard concerns from its members regarding the changes.

The College of Health and Care Professionals of BC, which is the regulatory body for physiotherapists, did not respond to a media request for comment.

ICBC also created an email address where the 3,500 clinics and approximately 10,000 providers could send their questions or concerns and got only around 40 emails, Strauss said.

Wegner said she and all the employees of her clinic have contacted ICBC to voice their concerns and ask questions about the changes. They’ve heard nothing back, Wegner said.

She’s not even sure when these changes come into force. The ICBC email notifying clinics of the changes was sent on Dec. 10 and said clinics had until Jan. 25 to opt out, but could continue direct billing ICBC until March 22.

Speaking with The Tyee, Strauss couldn’t provide an exact date the changes will come into force but said it would likely be in the spring.

Because ICBC has a monopoly on auto insurance, the changes will apply to every driver in B.C. who experiences an accident and needs to seek care, Myftiu said.

Access to patient files

Section 6.3 of the updated terms says ICBC representatives can now access any computer system during work hours to review health-care files.

There are a lot of privacy rules around health records in B.C., and allowing ICBC representatives access to all computer systems could easily violate these patient rights, Wegner said. Mostly she’s concerned that an ICBC representative could see non-ICBC patient information.

Strauss noted ICBC is bound by privacy rules and requirements around patient health records set by regulatory colleges in the same way care providers are.

“I understand [ICBC] wants to be able to check a clinic is not overbilling,” Myftiu said. “But I don’t like how ICBC can just drop in on a clinic and check. I work with people trying to get pregnant. That’s very sensitive information. Why should ICBC get to see their files if they’re not ICBC patients?”

Even having an ICBC representative see a clinic schedule that had patient names and their insurance provider on it could break rules around releasing third-party information, Wegner said.

Myftiu said between 30 and 40 per cent of her patients are ICBC clients.

Most physiotherapy clinics use a software system called the Jane app, and Wegner said she asked them if it would be possible to apply a filter so only ICBC cases were visible. They said the software didn’t work like that, she said.

Strauss said ICBC would only ever require this access in an audit process and that care providers would have the opportunity to redact information to protect other patients’ confidentiality.

Section 6.3 says access would also be needed for an inspection, investigation and assessment.

“ICBC must also remain compliant with all privacy laws, so we will not put ourselves or the provider network in a position of non-compliance,” Strauss said. “We don’t see the terms conflicting with this.”

Shearer said “showing up unannounced to audit a clinic” would “never” happen, and even conducting an audit is “a rare circumstance.”

Ownership of patient files

Section 9 of the new terms seems to make substantial changes to who owns a patient’s health record, Wegner said.

In B.C. information in medical records belongs to the patient, but ICBC seems to be saying that it will now be the owner of that information and that the Crown corporation will get to say when the information is stored or destroyed, Wegner said.

But regulatory colleges set the rules for how long providers have to hold on to copies of health records, she said. For example, registered massage therapists and chiropractors have to hold records for 16 years. What are providers supposed to do if ICBC tells them to destroy the records before then? she asked.

Wegner said no other insurance providers own their patients’ medical records.

Section 9.1 reads, “You agree that you will acquire no interest in any of the ICBC confidential information.”

Strauss said “ICBC confidential information” does not refer to a patient’s clinical records, but to things like products, customers, suppliers or intellectual property. “The patient owns the clinical records; we don’t own them,” he added.

Injury treatments

Section 6.1 reads, “ICBC may set key performance indicators for services and deliverables and you agree to comply with such KPIs.”

Wegner said that wording could mean ICBC would be able to set requirements for how a specific injury had to be treated.

In Canada health-care professionals are overseen by regulatory colleges, which set standards for education, training and ensuring providers are in good standing, Wegner said. After that it’s up to the health-care provider to meet with a patient and decide how to best treat them.

If ICBC created standard treatment protocols or timelines, then health-care providers could become caught between what they think the best treatment would be for a patient and what ICBC says has to happen, Wegner said.

This could impact their professional reputation if they’re not doing what is best for the patient, she added.

Strauss said Section 6.1 is meant to refer to things like direct billing and administrative tasks like requiring clinics to submit invoices within 45 days.

“ICBC is not directing care. We are not engaging in describing this and not driving what the clinician ought to be doing,” he said. “That’s up to them.”

But Wegner said the vague wording leaves the door open to ICBC directing care.

Wegner said there’s an inherent tension between health-care providers, who want their patients to recover before stopping treatment, and insurance companies, who may want patients to get back to work as quickly as possible.

“ICBC doesn’t really care about pain, unfortunately,” she said. “They just want measurements, like the range of motion, how much a patient can carry, how much they can bend. If it hurts, it doesn’t matter.”

As of 2021, ICBC covers 25 physio, 12 acupuncture, 12 massage, 25 chiropractic and 12 kinesiology sessions for all people involved in a motor vehicle accident, regardless of fault.

More sessions may be covered but the patient will have to work with a doctor who prepares a treatment plan that ICBC signs off on, Wegner said. On average a patient who was moderately injured will need three extensions to get back to their pre-accident range of motion and work abilities. More serious injuries involving fractures or injuries to the spine require even more time, she said.

Myftiu said there’s a class divide between who gets approved for nearly unlimited additional sessions and who doesn’t.

“If you can afford a lawyer, you get years of coverage,” she said. ICBC used to provide lawyers and “everyone would get coverage,” she said. Then ICBC switched to providing a set minimum number of sessions, “and now if people can’t afford a lawyer they can’t get further treatment, even if they bring a note from a physio saying they need more treatment,” she said.

The impact on clinics, service providers

Wegner said she’s spoken with a lawyer about the updated health-care services terms.

“They confirmed that the agreement is very vague. The way it is written leaves a lot of room for manipulation and is very one-sided,” Wegner said.

She said she’s spoken with other clinics that told her these changes are “outrageous” and that they are not willing to accept the new rules.

For her clinic, “I honestly don’t know,” she said. “Half of the therapists would still like to continue and half of them are like, ‘No, forget it. It’s not worth the hassle. They’re telling us how to treat the patients. It’s not up to us anymore.’”

At an average clinic, 30 to 40 per cent of acupuncture, counselling and massage patients, 40 to 60 per cent of physiotherapy patients and 100 per cent of kinesiology patients would be covered by ICBC, Wegner said.

Wegner said WorkSafeBC made similar sweeping changes to its service terms several years ago, which caused a lot of clinics to stop accepting WorkSafeBC clients, reducing the pool of clinics patients could choose from.

“ICBC is the only insurance you can have for your car,” Wegner said, adding that she’s frustrated that ICBC’s monopoly allows it to make these changes unchallenged.

Learn more about our News Monitoring here.

---