OMA board needs to invoke arbitration in stalled negotiations

While most frontline physicians continue to deal with the ongoing COVID-19 pandemic, and the resultant backlog of care, the OMA has continued to perform its most important function, that of trying to negotiate a Physician Services Agreement (PSA). A quick summary of what has already been disclosed: The binding arbitration framework (BAF) between the Ontario government allows for negotiating a Physician Services Agreement (PSA) every four years. The last one was for 2017-2021. We should already have had an agreement for 2021-2025 but the COVID pandemic got in the way and delayed negotiations. Negotiations for a PSA are supposed to start the year before expiry of a PSA. There is a framework that allows for a minimum of 60 days for negotiations following which either side can call for mediation. After a minimum of 60 days of mediation, either side (or the mediator) can call for arbitration. If arbitration does occur, the arbitrator must hand down a ruling within 60 days of the conclusion of the arguments presented at arbitration. After the ruling is handed down, the work of implementing the award (or if by some chance an agreement is reached—the PSA) begins, and that in itself can take several months to a year. Those of us who were involved in the last implementation process in any way likely still have nightmares about how complex and fraught with challenges it was—I know I still do. Read: OMA fails family practice with virtual care agreement For the current negotiations, we know the following: Negotiations began in October of 2020. The OMA board gave the Negotiations Task Force (NTF) a mandate for negotiations. A mandate is essentially a confidential, bare minimum set of asks that the NTF must get from the government before accepting a deal. Considering there is no deal, the NTF clearly has not met that minimum. And no, the members can’t know what that is, it would significantly compromise the negotiations process. The ministry’s team repeatedly postponed many meetings citing the pressures of dealing with the pandemic. Given the extraordinary circumstances we are in, it is reasonable to deal with pandemic related issues first. Some delay is acceptable. Mediation began on April 9, 2021. “A large gap” remained between the OMA’s asks, and the MOH’s offer as of June 2021. As I’m no longer on the OMA board, I have no idea what the gap is like now. Obviously, if there was no gap, we would have a deal by now. Why should the OMA board move to arbitration now? Why not follow the mediator William Kaplan’s recommendation, and wait till January 25, 2022 to go to arbitration? Wouldn’t going against his recommendation run the risk of adversely affecting the outcome of a potential award? Nope—because we have a provincial election coming in June 2022. Health care is political in Canada. Being political, the time for governments to attack physicians is always, always, always early in their new mandate. In 1991, the NDP government of Bob Rae imposed a hard cap on the physicians budget (first year in power). In 2015 in the first year of Kathleen Wynne’s government, she also imposed unilteral cuts to physicians and in 2018 the Doug Ford government tried to take away binding arbitration. The short version of the above is that I’m old, and I’ve been screwed by the government of every political party. It doesn’t matter who wins the provincial election of June 2022, the government that is in power will be sorely tempted to revoke any arbitration award if it seems to meet their short-term interests. (Yes, I know, the BAF is “evergreen” —meaning the process should continue in perpetuity, but the reality is that governments do stupid things all the time, and if one government has tried to take away a BAF process from physicians to suit their interests, then we can be sure another will as well.) And no, having arbitration currently as scheduled for Jan to March 2022 is not good enough. Finishing arbitration hearings at the end of March gives the arbitrator until the end of May for a ruling. By that time the election campaign will be in full gear, and ministry bureaucrats will do absolutely nothing to implement any award as they wait for the outcome of the election. Obviously, going to arbitration now entails some risks. The NTF will likely argue that the arbitrator himself recommended waiting till January, and we should try our best to seem reasonable to him. I have a great deal of respect for the NTF for the job they’ve done for the doctors of Ontario, in particular the negotiation of the BAF. But they are paid a lot of (well deserved) money to let the arbitrator know of legitimate concerns of the membership. I’ve met the arbitrator and I have no doubt he will hand down a fair decision, whether in December or March. But members have every reason based on history to fear politicians of all stripes, and it’s the job of the NTF to let him know that that’s a legitimate concern. Moving to arbitration immediately, means the arbitration hearings end likely by the end of December. An award is announced (likely) by March. At that point, the government is faced with accepting the award, or revoking it three months before an election, and risking the type of anti-government ads the OMA did so well last time. By the time the election is over, whoever wins, the MOH bureaucrats will be well on the way to implementing the award and any “noise” that the award is too much (there will always be noise) will have gone away. The OMA’s main responsibility is to negotiate a fair PSA for members. The BAF is the best tool they have for not only keeping the government honest, but for political use to reduce the risk of awards being overturned. (NB: There’s no guarantee of anything, politicians do stupid things all the time. This is simply about risk reduction). Will the OMA board stand up for members and direct the NTF to immediately move to arbitration, as we are now legally allowed to? I guess we’re going to find out. Dr. Sohail Gandhi is a past president of the OMA and opinions are his and not necessarily the opinions of the OMA Board. This article is a reprint from his blog site: justanoldcountrydoctor.com.

OMA board needs to invoke arbitration in stalled negotiations

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