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Promoting Healthy Competition – Competition Bureau’s Digital Health Care Market Study

The COVID-19 pandemic has reinvigorated interest in modernizing Canada’s health care system.  For its part, the Competition Bureau (“Bureau”) has undertaken a digital health care market study, examining how pro‑competitive policies can foster innovation and bring about greater choice and access to digital health care services for Canadians. After consultations with a range of stakeholders, the Bureau published three reports in 2022 covering, respectively, the competitive role of personal health information, improving health care through pro-competitive procurement policy and using competition policy to empower digital health care. The Bureau’s papers highlight some key regulatory, technical and procedural aspects of the present Canadian health care system that may hinder competition, and provide several recommendations that, while lofty, have the potential to significantly impact the competitive landscape.  

While each report tackles a different element of Canada’s health care system, the Bureau’s recommendations thread some common themes to counteract structural and procedural inefficiencies that inhibit competition and, ultimately, the delivery of top quality health care:

  1. Harmonizing Regulatory Regimes – the Bureau found that varied regulatory regimes across provinces and territories can pose a major impediment to effective competition and cross-border care. Provinces and territories have different rules regarding access to and sharing of personal health information, which can make it complicated for digital innovators to adapt and expand across provincial borders and for providers to share patient information across platforms. Similarly, differing licensing requirements for practitioners makes the provision of cross-jurisdictional care challenging. To address these challenges, the Bureau recommends harmonizing regulatory regimes across provinces and territories to make it easier for practitioners and digital innovators to compete nationally.
  2. Adapting Government Policies for the Digital Age – in a public health care system, public procurement policies and compensation models for practitioners can play a critical role in influencing competition and demand-side innovation. To foster innovation, the Bureau suggests that processes currently focused on quantitative measures - for example, the focus on price in procurement decisions or compensating practitioners based on number of treatments delivered – could be redesigned to factor in qualitative outcomes such as service quality and efficacy of treatments. The Bureau also suggests that existing policies around data storage and virtual care could also be modernized to ease information sharing between practitioners and permit cross-border use of requisitions and prescriptions, which would directly impact a patient’s ability to quickly access health care services.
  3. National Standards and Centres for Excellence – health care falls under provincial and territorial jurisdiction, while the federal government, under the Canada Health Act, defines the national principles reflected in provincial and territorial health plans. As such, the Bureau’s recommendations to achieve harmonization often highlight non-legislative tools, such as the establishment of national standards for licensing or data storage and a centre of excellence for sharing procurement best practices. While these standards and centres of excellence would be established and enforced by independent organizations, they can play a similar role to the Canada Health Act by laying out the national principles to be reflected in provincial and territorial legislation.

The following are highlights of the Bureau’s findings in each of its three reports.

Part 1 - Unlocking the Power of Health Data

While Canadian health care systems are data rich, the Bureau found that health care providers have struggled to convert this data into information that can be used to innovate and improve patient care. The Bureau’s first report assesses the use of primary health care electronic medical record (EMR) systems and proposes steps to improve access to and sharing of personal health information with the aim of promoting competition and innovation in the health care industry. Disparate privacy and data governance rules across provinces and territories have resulted in market fragmentation, and the lack of interoperability standards between EMR systems hampers the ability to share data. To facilitate competition and ease sharing of health information among health care providers, the Bureau suggests that governments could leverage legislative tools to harmonize privacy and data governance rules across Canada. To supplement legislative activity, the Bureau recommends establishing national interoperability standards, through an independent organization, that govern data storage by and transfer between EMR platforms, establish reasonable costs for data sharing and include anti-blocking rules to ensure compliance.

Part 2 - Improving Health Care Through Pro-Competitive Procurement Policy

Since public entities are the main buyers of health care products and services in Canada, the Bureau’s second report focuses on how strategic use of government purchasing rules can bring about greater competition, innovation and choice for health care providers and patients. Stakeholders consulted through the study noted that public procurement processes can be risk averse, price-driven, outpaced by the rate of innovation and overly prescriptive, which hinders participation from small and medium enterprises (SMEs) that drive innovation in the digital health care sector. To create opportunities for SMEs, the Bureau notes that public procurers can self-assess their practices to account for the full life cycle of a product or service, how changes in technology could affect current and future needs, and any switching requirements between vendors. For example, procurement processes could adopt functional rather than technical requirements to allow vendors to compete on ways to achieve desired outcomes and use flexible award criteria that consider both quality and price.

Part 3 – Empowering Health Care Providers in the Digital Era

While the COVID-19 pandemic has accelerated the adoption of digital health care solutions, a significant gap remains between the demand for virtual care and the ability of health care providers to effectively deliver it. The Bureau’s third and final report examines three key opportunities to facilitate the adoption, and spur ongoing innovation, of digital solutions. First, compensation models for practitioners could be re-assessed to include funding mechanisms that incentivize investments in and care delivered via digital health care technologies such as remote patient monitoring platforms or secure messaging platforms. Second, licensing requirements for practitioners across provinces and territories could be harmonized and temporary cross-jurisdictional licensing agreements could be extended to facilitate the delivery of cross-jurisdictional virtual care and adoption of digital platforms used to deliver virtual care. Finally, existing virtual care standards could be modernized for the digital age by easing scope of practice regulations and permitting the use of requisitions and prescriptions across provincial/territorial borders.

Next Steps

Through these three reports, the Bureau has presented a range of solutions that achieve its intended goal for the market study of assessing and improving access, competition and innovation in the digital health care sector. While even a few of these changes have the potential to significantly alter the health care landscape in Canada, it remains to be seen whether the Bureau’s recommendations will lead to the governmental action required to implement them.

For any questions, we invite you to contact members of our Competition Law Group, Public Sector Group, Procurement Law Group, or Health Industry Group.