2016-0633581E5 Medical practitioners - behaviour analysts BCBA

Principal Issues: Whether a Board Certified Behaviour Analyst (BCBA) in Ontario is a medical practitioner for the purpose of the medical expense tax credit.

Position: No. See response.

Reasons: The requirement in subsection 118.4(2) is not met given that there is no provincial law that authorizes BCBAs to practise as such.

Author: El-Kadi, Randa
Section: 118.4(2); 118.2(2)(l.9); 118.2(2)(l.92)

                                                                                                                                      2016-063358
XXXXXXXXXX                                                                                                              Randa El-Kadi

July 6, 2016

Dear XXXXXXXXXX:

Re:   Board Certified Behaviour Analysts

This is in response to your correspondence of February 17, 2016, asking that Board Certified Behaviour Analysts (“BCBA”) in Ontario be considered medical practitioners for the purpose of subsection 118.4(2) of the Income Tax Act (the “Act”), and more specifically, the medical expense tax credit (“METC”).

In your submission, you quote excerpts from the Federal Court of Appeal (“FCA”) decision in Canada v. Couture, 2008 FCA 412; namely, the following comment by Justice Ryer in paragraph 16:

“In my view, the level of legislative approval put forward by the Crown would be clearly sufficient to demonstrate the requisite legislative authorization. However, I would not rule out the possibility that something else might be sufficient in other circumstances.”

In your view, the comment by the FCA suggests that “something less than legislative approval might constitute recognition in appropriate circumstances.”  In the case of BCBAs, you note that the Ontario Ministry of Children and Youth Services lists BCBAs among those professionals who can develop provincially-funded Applied Behaviour Analysis (“ABA”) service plans and deliver ABA-based supports, and you propose that should provide adequate authority for BCBAs to be considered authorized medical practitioners. You also state that, with BCBAs supervising the day-to-day delivery of service, it may be impractical to contact a psychologist solely to justify a medical tax credit.

Our comments

This technical interpretation provides general comments about the provisions of the Act and related legislation (where referenced).  It does not confirm the income tax treatment of a particular situation involving a specific taxpayer but is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will only be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular IC 70-6R7, Advance Income Tax Rulings and Technical Interpretations.

For the purpose of claiming an amount for the medical expense tax credit under section 118.2 of the Act, paragraph 118.4(2)(a) of the Act specifies that:

“For the purposes of sections 63, 64, 118.2, 118.3 and 118.6, a reference to an audiologist, dentist, medical doctor, medical practitioner, nurse, occupational therapist, optometrist, pharmacist, physiotherapist, psychologist, or speech-language pathologist is a reference to a person authorized to practise as such,

(a) where the reference is used in respect of a service rendered to a taxpayer, pursuant to the laws of the jurisdiction in which the service is rendered;”

As we explain in paragraph 1.22 of Income Tax Folio S1-F-C1, Medical Expense Tax Credit (the “Folio”):

“In accordance with the decision of the Federal Court of Appeal in Canada v. Couture, 2008 FCA 412, 2009 DTC 5040, it is the CRA’s [Canada Revenue Agency] view that an individual is authorized by the laws of the jurisdiction to act as a medical practitioner if there is specific legislation that enables, permits or empowers that individual to perform medical services. Generally, such specific legislation would provide for the licensing or certification of the practitioner as well as for the establishment of a governing body (for example, a college or board) with the authority to determine competency, enforce discipline and set basic standards of conduct.”

In Couture, the FCA rejected the Tax Court judge’s proposition that the phrase “authorized to practise” in subsection 118.4(2) is synonymous with permitted to practise or not prohibited from practising. The FCA also considered the meaning of the term “authorize” and held (in paragraph 13 of the decision) that, in the context of subsection 118.4(2) of the Act, this meant “formal recognition …that is legally countenanced under Ontario law.”

Therefore, the FCA’s obiter comment regarding “the possibility that something else might be sufficient in other circumstances” may not be taken out of context to envision other than a legislative approval. We are also of the view that the level of legislative approval that is contemplated under subsection 118.4(2) would have to be consistent with the existing legislative framework that governs health professions in the particular province or territory.

For example, in Ontario, the Regulated Health Professions Act, 1991 (“RHPA”), and associated health profession acts (for example, the Medicine Act, 1991, and the Psychology Act, 1991) set out the governing framework for the regulated health professions. The health profession acts are named in Schedule 1 of the RHPA. Moreover, the Health Professions Procedural Code (“Code”), which is Schedule 2 to the RHPA, is embedded into, and deemed to be part of, each health profession act. The Code sets out the practical rules for the health regulatory colleges responsible for regulating the practice of the profession and governing its members. The colleges of a health profession or group of health professions are therefore established or continued under a health profession act. Additionally, the RHPA and associated health profession acts authorize each member of a particular health profession encompassed within their legal framework to provide services that are within the scope of practice of that profession in the jurisdiction of Ontario. In our view, this is the type of authorization contemplated in paragraph 118.4(2)(a) of the Act.

As you noted in your submission, there is no legislation in Ontario that authorizes the practice of BCBAs. There is also no reference to BCBAs in the RHPA, and the practice of BCBAs is not regulated under Ontario laws. Therefore, in our view, BCBAs do not meet the requirement in paragraph 118.4(2)(a) of the Act in that they cannot be said to be authorized to practise as such “pursuant to the laws of the jurisdiction in which the service is rendered.”

Provisions of the Act relating to tutoring, therapy, and therapy plan design

Paragraph 118.2(2)(1.91) of the Act allows as an eligible medical expense amounts paid as remuneration for tutoring services that are rendered to an individual who is certified in writing by a medical practitioner as requiring these services because of a learning disability or a mental impairment. The services must be supplementary to the individual’s primary education and the payments must be made to a person ordinarily engaged in the business of providing tutoring services to individuals. As noted, BCBAs are not medical practitioners for the purpose of certifying an individual’s need for tutoring; however, an amount paid for tutoring provided by a BCBA may be an eligible medical expense if all the requirements of the provision are met.

Broadly speaking, paragraphs 118.2(2)(l.9) and (l.92) of the Act allow as an eligible medical expense amounts paid for therapy or the design of an individualized therapy plan, where the therapy is administered by a person other than a medical practitioner. Generally, these expenses must be in respect of an individual who is eligible for the disability tax credit, and the therapy must be prescribed by, and administered under the general supervision of a medical doctor or an occupational therapist (in the case of a physical impairment) or a medical doctor or a psychologist (in the case of a mental impairment). Therefore, amounts paid as remuneration to a BCBA for therapy or the design of an individualized therapy plan may be eligible for the METC if all of the requirements of the relevant provision are met.

Please refer to paragraphs 1.115 to 1.117.1 of the Folio for additional information and the full requirements under paragraphs 118.2(2)(l.9), (l.91) and (l.92) of the Act.

Lastly, we would like to point out that even if BCBAs were authorized to practise under the laws of Ontario (and therefore considered to be authorized medical practitioners), any therapy prescribed by or administered under the general supervision of a BCBA would still not qualify under the current wording of paragraphs 118.2(2)(l.9) and (l.92). These provisions require that the medical practitioner be a medical doctor, psychologist or occupational therapist, as appropriate. As such, any proposition to change the current wording of these provisions would require a legislative amendment of these provisions. Finance Canada is responsible for evaluating tax policy and proposing amendments to the Act, whereas the CRA administers and enforces the Act as passed by Parliament.

We trust that these comments will be of assistance.

Yours truly,

Pamela Burnley, CPA, CA
Tax Credits and Ministerial Issues
Business and Employment Division
Income Tax Rulings Directorate

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