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Provider Appeals Regulations
made under subsections 17(2) and 31(3) of the
Fair Drug Pricing Act
S.N.S. 2011, c. 7
O.I.C. 2011-234 (June 30, 2011, effective July 1, 2011), N.S. Reg. 226/2011
1 These regulations may be cited as the Provider Appeals Regulations.
2 In these regulations,
“Act” means the Fair Drug Pricing Act;
“Pharmaceutical Services” means the Pharmaceutical Services Branch of the Department of Health and Wellness;
“Executive Director” means the Executive Director of Pharmaceutical Services;
“appeal panel” means the pharmacare appeals panel;
“hearing” means a hearing before an appeal panel;
“overpayment” means an overpayment made by the Administrator to a provider;
“provider manual” means any billing instructions, including the pharmacare prescription audit recovery procedures, made available to providers by the Administrator in the Pharmacists’ Guide and Pharmacists’ Bulletins;
“secretariat” means the secretariat to the appeal panel;
“tariff agreement” means the current agreement on tariffs made under subsection 14(2) of the Act.
Patient and prescription records
3 (1) A provider must keep patient records or prescription records for all claims in accordance with the Act and its regulations, the provider manual and the tariff agreement.
(2) If requested by the Administrator, a provider making a claim must give the Administrator any particulars of the claim and documentation to support the claim in accordance with the Act and its regulations, the provider manual and the tariff agreement.
Administrator’s determination of amounts payable
4 In addition to being in accordance with the Act and regulations, as required by Section 23 of the Act, the Administrator’s determination of amounts payable for claims under Section 23 of the Act must also be in accordance with the provider manual and the tariff agreement.
Administrator’s investigative determinations
5 (1) The Administrator may make 1 or more of the investigative determinations set out in subsection (2) if the Administrator has reasonable grounds to believe that any of the following have occurred:
(a) all or part of a benefit was not billed according to the billing instructions made available to the provider by the Administrator;
(b) all or part of a benefit is not verifiable from the associated patient records or prescription records;
(c) a patient record or prescription record has not been kept as required for the insured services;
(d) the nature of a benefit is misrepresented;
(e) all or part of a benefit was not provided to a beneficiary;
(f) the Administrator has paid a claim or claims for a drug, device or service that is not a benefit.
(2) The following are the types of investigative determinations that the Administrator may make under subsection (1):
(a) refuse or reduce payment of a claim;
(b) order the provider to reimburse to the Plan any overpayment;
(c) recover any overpayment by deducting the amount of the overpayment from any other amounts payable by the Administrator to the provider;
(d) commence and maintain a civil proceeding in the Supreme Court of Nova Scotia for recovery of any overpayment;
(e) enter into an agreement with the provider in settlement of the matter upon any terms as may be agreed to;
(f) recommend to the Minister that the provider’s designation under the Plan be suspended, modified, restricted or terminated.
Pool of nominees for appeal panel
6 Every 3 years, the Pharmacy Association of Nova Scotia must create an appeal panel pool from the Association’s membership made up of 15 nominees that hold an active practice licence with the Nova Scotia College of Pharmacists.
Selecting appeal panel
7 (1) On receiving a notice of appeal, the Executive Director must select an appeal panel composed of 5 members chosen from the pool established in Section 6 to hear the appeal.
(2) Each appeal panel member must provide the Executive Director with all of the following, in the forms determined by the Minister:
(a) a signed form declaring that they have no conflict of interest in hearing the appeal;
(b) a signed confidentiality agreement.
(3) When appointing pool members to an appeal panel, the Executive Director may rotate the choice of appeal panel members from among the pool.
(4) A person who is party to an investigation must not be an appeal panel member for any appeal regarding the investigation.
(5) An appeal panel must designate 1 of its members as the panel’s chairperson and another member as the panel’s vice-chairperson.
(6) The chairperson or, in the absence of the chairperson, the vice-chairperson of the appeal panel must preside at each meeting of the panel.
Expense claim reimbursement for appeal panel members
8 Appeal panel members must be reimbursed for any expenses incurred as part of the appeals process, in accordance with the policy for public servants of the Province.
Appeal panel rules
9 (1) An appeal panel member must not communicate outside the hearing about the subject matter of the hearing with a party or the party’s representative, unless the opposing party has been given notice of the subject matter of the communication and has an opportunity to be present during the communication.
(2) A member of an appeal panel who ceases to be a member of the appeal panel after the hearing begins must not be replaced, and if there are not enough members to continue the hearing, the hearing must be discontinued and an appeal panel made up of different members must be selected to hear the appeal de novo.
(3) Only those members of an appeal panel who were present throughout a hearing may participate in making the appeal panel’s recommendation.
Scope of appeals
10 The scope of an appeal is limited to hearing evidence supporting a provider’s appeal that the Administrator’s investigation or investigative determination does not reflect the information provided in the provider manual or tariff agreement.
Powers of appeal panel
11 (1) The functions of an appeal panel are to hear appeals by providers from investigative determinations under Section 5 and to perform any other duties that may be necessary or incidental to hearing the appeals.
(2) Subject to subsections (3) and (4), an appeal panel may make decisions on any matter referred to it, including any of the following:
(a) confirming any action taken by the Administrator under Section 5 and dismissing the appeal;
(b) varying or rescinding any action taken by the Administrator under Section 5;
(c) directing that the Administrator take any action under Section 5.
(3) An appeal panel has no power or jurisdiction to amend, vary, change or add to the provider manual or the tariff agreement.
(4) A decision of the appeal panel must be in accordance with the Act, the regulations, the provider manual and the tariff agreement.
(5) The appeal panel may make any orders it considers necessary to avoid prejudice to any party or parties that might be caused by errors, omissions or amendments.
Initiating appeal of investigative determination
12 (1) A provider may appeal an investigative determination made under Section 5 by referring the determination to an appeal panel using the notice of appeal form determined by the Minister.
(2) A provider must serve the notice of appeal on the Executive Director no later than 30 days after the date that the provider received the investigative determination.
(3) An appeal to the appeal panel does not operate as a stay of any action taken or order made by the Administrator under the Act or these regulations.
13 (1) The Executive Director must set the time, date and place for a hearing, at a date that is no later than 90 days after the notice of appeal is received.
(2) The Executive Director must assign staff of Pharmaceutical Services as the secretariat.
(3) The secretariat must give a provider at least 30 days’ notice of the date, time and place of their hearing, unless the notice is waived by the provider.
14 A hearing is not open to the public.
15 (1) At the beginning of a hearing, the chairperson must be satisfied that the provider was given notice of the date, time and place of hearing in accordance with subsection 13(3).
(2) An appeal panel may consider all of information that was previously considered by the Administrator in making the investigative determination, and may consider any additional information, evidence or submissions that are placed before it for the appeal.
(3) The appellant and the Administrator may present evidence at a hearing through either written or oral submissions, or both, and both the provider and the Administrator may be represented by legal counsel.
(4) Oral evidence presented to an appeal panel at a hearing must be recorded in the minutes of the hearing.
(5) At the request of a party to a hearing, an appeal panel must give the party copies of the minutes of the hearing.
(6) An appeal panel may adjourn a hearing from time to time and place to place, as it considers necessary.
(7) After a hearing has been finally determined, an appeal panel must release documents and other evidence presented at the hearing to the person who produced them at the hearing, when requested, within a reasonable time.
Examination of evidence
16 (1) All parties must give the secretariat and any opposing parties an opportunity to examine all of the following, at least 7 days before the date of the hearing:
(a) any written or documentary evidence that will be produced at the hearing or any report the contents of which will be given in evidence at the hearing;
(b) the identity of any expert who will give evidence, and the expert’s written report or a written summary of the expert’s evidence if there is no written report;
(c) the identity of any witnesses who will give evidence.
(2) If a party fails to comply with subsection (1), the other party may request an adjournment from the appeal panel.
(3) An appeal panel may grant or deny a request for adjournment under subsection (2), and may take any further action or make any order it considers reasonable and necessary to fulfill the purpose of subsection (1).
Provider fails to appear at hearing
17 If a provider fails to appear at the time and place appointed for a hearing, the appeal panel may take any action or exercise any of its powers under Section 11.
18 All parties to a hearing may agree on the terms of a settlement before the hearing and, if a settlement agreement is reached, the appeal panel must dismiss the appeal.
Appeal panel’s decision
19 (1) A decision of a majority of the members of an appeal panel eligible to participate under subsection 9(3) is a decision of the appeal panel.
(2) An appeal panel must provide a copy of its written decision to all of the following:
(a) the Administrator;
(b) the provider, by registered mail to the address given by the provider.
(3) A copy of a written decision of an appeal panel is deemed to be received by a provider on the 5th day after it was mailed under clause (2)(b).