Sunshine List Exemption Process - AMA Guidance to Physicians

As members are aware, government is proceeding with a Physician Payment Disclosure (Sunshine List). Physician payments are due to be disclosed by November 9, 2020 and the application process for exemption is open until October 7, 2020.

With the deadline to submit exemption applications quickly approaching, the AMA wanted to share some general advice that we’ve put together for physicians who wish to apply.

There are some key points to consider:

• Government has provided itself with the requisite authority to disclose this information through amendments to the Alberta Health Care Insurance Act and enactment of the Physician Payment Disclosure Regulation.
• Each request is evaluated on a case-by-case basis, based on an assessment of the security risk to the physician.
• While government requirements are somewhat vague and subjective, there also appears to be a “very high bar” set for exemptions. Alberta Health staff have indicated:
  • Less than 2% of regular sunshine list exemption applications are approved
  • Alberta’s crown prosecutors were unsuccessful as a group to obtain an exemption
• The physician must be able to demonstrate a credible and specific threat to their safety either created or exacerbated by this disclosure. Examples provided by Alberta Health for circumstances that may justify an exemption include long-standing harassment, spousal abuse and stalking issues. Circumstances that likely will not justify an exemption include threats or risks that are purely speculative, unrelated to the disclosure of the information and ordinarily occur because of the nature of the physician’s profession.
• Certain information is already publicly available (e.g., that a physician is on the CPSA register, that physicians working in this specialty receive a certain range of payments for services). The physician should focus on the threat created by disclosure of the additional information contained in the sunshine list (e.g., actual payments received by this individual physician for services).
• The onus is on the physician to demonstrate the threat. A detailed description of a threat to safety should include concrete, credible and realistic reasons for believing that the publication of the information will create an undue safety risk. The applicant should at all times specifically tie the identified safety risks to the disclosure of their personal information. Where possible, documentation or other supporting evidence should be provided.
• The government’s policy addresses physician safety and only peripherally discusses safety of family/extended family. The AMA advises that physicians include any risks to their families and extended families. Again, be as specific as possible (e.g., incidents, dates, whether police and/or legal system involved, etc.). Alberta Health suggests using the Government of Canada publicly available information (found at travel.gc.ca) as a resource for identifying risks to family associated with the disclosure. Where possible, we recommend making specific reference to information provided on this website.
• Note that group applications are not allowed – each individual physician must submit their own application
• Information provided by the physician for an exemption is collected under section 33(c) of the Freedom of Information and Protection of Privacy Act, which requires Alberta Health to protect the information provided under unauthorized access, collection, use and disclosure.

As physicians gain more experience with this process, it may become clearer what individual circumstances meet (and don’t meet) the criteria for an exemption. Until this is known, any physicians concerned about their personal safety and the safety of their families are encouraged to apply and provide details of their concerns.

Checklist Steps to Follow

1. Review the government’s policy and process document (alberta.ca/assets/documents/health-physician-payment-disclosure-policy-and-process.pdf)
2. Complete the brief application form (alberta.ca/assets/documents/health-physician-payment-disclosure-exemption-application-form.pdf)
3. Include a detailed description of the threat to personal safety that would result from the disclosure (be as detailed and as thorough as possible). Provide any documented evidence that would substantiate your concerns.
4. Email form and evidence to Alberta Health (health-pcsp.admin@gov.ab.ca) by October 7, 2020. The government is not allowing any extensions on this deadline. AMA advises to request a confirmation that the email is received.
   
   If the physician is uncomfortable providing personal details via email, or prefers to communicate via regular mail, forms can be mailed to:

Executive Director
Provider Compensation and Strategic Partnerships Branch
Alberta Health 11th floor
ATB Place 10025 Jasper Avenue
Edmonton, AB T5J 1S6

Government Process to Review Requests

• Personal information submitted to Alberta Health will be redacted and sent to the Corporate Security Division of Justice and Solicitor General (the group responsible for security for the Government of Alberta).
• The Corporate Services Division applies a “law enforcement type of lens” to evaluate applications and threats to physicians’ safety.
• There does not appear to be an opportunity for follow-up questions and back-and-forth communications between physicians and JSG staff, so physicians will want to be as thorough as possible with their applications.
• Exemptions are ultimately approved through the office of the Deputy Attorney General of Alberta.
• Alberta Health will receive a list of persons exempted, but will not receive any further information from JSG staff around the reasons for the exemption.

Appeals

• The decision by the Deputy Attorney General is considered final, however, it is possible for physicians to appeal through the courts on questions around whether or not the application received appropriate due process (i.e., not on the merits of the appeal).
• If further information comes to light, a physician may elect to submit an exemption request for the next annual disclosure. After the first disclosure’s deadline of October 7, the deadline for exemption applications for subsequent disclosures will be January 1 of each year.