STATUS
Yes, some provincial governments are currently violating Section 11(1)(b)(ii) of the CHA.

Section 11(1)(b)(ii) of the CHA states that in order to satisfy the criterion respecting portability, the health insurance plan of a province ... must provide ... for the payment of amounts for the cost of insured health services provided to insured persons while temporarily absent from the province on the basis that ... where the insured health services are provided out of Canada, payment is made on the basis of the amount that would have been paid by the province for similar services rendered in the province, with due regard, in the case of hospital services, to the size of the hospital, standards of service and other relevant factors.

The provinces have not disclosed their cost of providing insured health services within the province relative to those similar services provided out of province. Rather, some provinces merely pay a flat non-indexed amount for health services irrespective of Section 11(1)(b)(ii) of the CHA.

For example, the CSA established that in 1992/93, the average cost per patient-day in Canadian public hospitals was $553. At that time, only British Columbia was in non-compliance by paying $75 per day.

Section 15(1) of the CHA allows the federal government to withhold cash contributions from an offending province that violates the CHA. However, Section 14 of the CHA requires an extensive consultation process between the federal government and the Minister of Health of the offending province, before cash contributions may be withheld by the federal government at the discretion of the minister.

PAST CSA SUCCESS
The CSA has paid for three court cases on behalf of its members to seek justice for the consistent and flagrant provincial violations of Section 11(1)(b)(ii) of the CHA. In effect, the CSA has had to act as a "private attorney-general" in its efforts to enforce the terms of the CHA as described below.

(a) Ontario
On March 24, 1995, the Ontario Divisional Court in a 2:1 decision failed to decide whether the claim that Ontario's reduction in the daily maximum payable under the Ontario Health Insurance Plan for emergency in-patient hospital services provided to Ontario residents from $400 to $100, while they were temporarily out of province, violated the CHA. Instead, the majority held that the application was made prematurely and was not ripe for judicial review. The court held that the CHA provided for a consultation process between the federal government and an offending province, before the courts could intervene but such a process had not yet commenced.

The dissenting opinion, however, clearly stated that the matter was not premature and that Ontario's new regulation violated Section 11(1)(b)(ii) of the CHA.

The CSA appealed the decision, however it was later abandoned, in return for the Ontario government's agreement to increase the daily maximum payable under the Ontario Health Insurance Plan for emergency in-patient hospital services back to $400 per day and to consider the implementation of an annually indexed or annually reviewed formula.