College of Nurses of Ontario v. Samuels, 2022 CanLII 135105

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Sherry Szucsko-Bedard, RN Chairperson Tim Crowder Public Member Ramona Dunn, RN Member Carly Hourigan Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario

• and -

LINNETTE L. SAMUELS Registration No. JH721671 NO REPRESENTATION for Linnette L. Samuels

CHRISTOPHER WIRTH Independent Legal Counsel

Heard: June 13, 2022

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on June 13, 2022, via videoconference.

The Allegations

The allegations against Linnette L. Samuels (the “Member”) as stated in the Notice of Hearing dated June 6, 2022 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at Baycrest Hospital in Toronto, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular, in or around 2012 to 2015, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan (the “Benefit Plan”).

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(8) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at the Facility, you misappropriated property from a client or workplace, and in particular, in or around 2012 to 2015, you submitted and/or accepted payment for false claims under the Benefit Plan.

3. You committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(14) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at the Facility, you falsified a record relating to your practice, and in particular, in or around 2012 to 2015, you submitted and/or accepted payment for false claims under the Benefit Plan.

4. You committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(15) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at the Facility, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, and in particular, in or around 2012 to 2015, you submitted and/or accepted payment for false claims under the Benefit Plan.

5. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while working as a Registered Practical Nurse at the Facility, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and in particular, in or around 2012 to 2015, you submitted and/or accepted payment for false claims under the Benefit Plan.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2, 3, 4 and 5 in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

MEMBER

1. Linnette L. Samuels (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on November 25, 2008.

2. The Member was employed as an RPN at Baycrest Health Sciences (the “Facility”), located in Toronto, Ontario from 2009 to 2019. The Member’s employment at the Facility was terminated in connection with the incidents below.

BENEFIT PLAN

3. The Facility’s employee benefit plan (the “Benefit Plan”) is a group insurance policy which provides coverage for extended health care, dental, and other insurance benefits. The Facility is the Plan Sponsor for the Benefit Plan and funds the cost of claims paid out under the plan. Coughlin & Associates Ltd (“Coughlin”) administers the Benefit Plan on behalf of the Facility. Employees contribute to the cost of the Benefit Plan as set out in their employment agreement and/or collective agreement, and based on their election for individual or family coverage.

4. In order to submit a claim, Benefit Plan members must complete a medical expense claim form provided by Coughlin. The claim form requires certain information, including information on the plan member, any dependents, and the nature of the claim. The plan member must certify “that the information given is true, correct and complete to the best of [their] knowledge”.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5. Between 2012 and 2015, the Member submitted false claims under the Benefit Plan and received in or around $8,170. The false claims related to physiotherapy and a variety of orthopaedic medical products.

6. In January 2019, the Facility uncovered benefits irregularities and conducted an internal investigation into the issue. On April 19, 2019, as part of this investigation, the Member was interviewed by the Facility with respect to her claims. The Member acknowledged that she participated in a fraudulent benefit claim scheme whereby product providers submitted false claims on her behalf, and she acquired non-medical merchandise in exchange.

7. The Facility terminated the Member’s employment on July 10, 2019 as a result of this conduct. The Member did not make restitution.

8. If the Member were to testify, she would say she takes full responsibility for her actions.

BENEFIT FRAUD CASES

9. To date, a total of 52 benefit fraud cases involving substantially similar schemes as the one identified in this case, involving either cash or products not covered by the benefit plan, have been referred to the Discipline Committee. The dollar amounts of the false claims involved range from under $500 to over $45,000.

CNO STANDARDS

Professional Standards

10. CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.

11. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring his or her practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

12. CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. The leadership expectation is not limited to nurses in formal leadership positions and all nurses, regardless of their position, have opportunities for leadership. Nurses demonstrate this standard by actions such as role-modelling professional values, beliefs and attributes.

Ethics

13. CNO’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including patient well-being, patient choice, privacy and confidentiality, respect for life, maintaining commitments, truthfulness and fairness.

14. CNO’s Ethics Standard provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession brings with it the respect and trust of the public. To continue to deserve this respect, nurses have a duty to uphold the standards of the profession, conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession.

15. CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.

16. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard when she submitted false claims under the Benefit Plan.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

17. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 5 to 7 and 10 to 16 above.

18. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she misappropriated property from a workplace, as described in paragraphs 5 to 7 above.

19. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing in that she falsified a record relating to her practice, as described in paragraphs 5 to 7 above.

20. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement, as described in paragraphs 5 to 7 above.

21. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 5 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 to 7 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, 3, 4 and 5 of the Notice of Hearing. As to allegation 5, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional and dishonourable.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 5-7 and 10-17 in the Agreed Statement of Facts. The Member submitted false claims under the Baycrest Hospital’s (the “Facility”) employee benefit plan (the “Benefit Plan”) between 2012-2015 and received in or around $8,170.00 in relation to those false claims. The College’s Ethics Standard documents ethical values are important to the nursing profession in Ontario, and part of these values include truthfulness. The Member purposely tried to deceive the Benefit Plan her employer provided for her and her family when she submitted fraudulent claims to acquire non-medical merchandise in exchange. The Member showed little, if any, integrity and breached the Professional Standards when she purposely submitted false claims for her own benefit.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5-7 and 18 in the Agreed Statement of Facts. The Member admitted to participating in a fraudulent benefit claim scheme whereby product providers submitted false claims on her behalf and she acquired non-medical merchandise in exchange. The Member misappropriated property from the Facility when she submitted and accepted payment for false claims under the Benefit Plan. The Member admitted to participating in a fraudulent benefit claim scheme where she acquired non-medical merchandise in exchange.

Allegations #3 and #4 in the Notice of Hearing are supported by paragraphs 4-7 and 19-20 in the Agreed Statement of Facts. The Member, as an RPN employee of the Facility, received a Benefit Plan which provided coverage for extended health care, dental and other insurance benefits. The Member submitted false claims to the Benefit Plan between 2012-2015. To submit a claim, she would have had to sign the claim submission documents to send to the Benefit Plan which her employer provided to her. The Member admitted to submitting falsified claims so in signing the submission documents she would have known they contained false statements. The Panel finds the Member committed acts of professional misconduct when she falsified a record relating to her practice and signed or issued a false or misleading document in her professional capacity.

With respect to allegation #5, the Panel finds that the Member’s conduct was clearly relevant to the practice of nursing. In submitting false claims multiple times over several years, the conduct was unprofessional as it demonstrated a serious disregard for her professional obligations. The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through falsifying records and making fraudulent submissions to the employee Benefit Plan. The Member also knew or ought to have known that her behaviour was unacceptable and fell below the standards of a professional.

Penalty

College Counsel and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 4 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct,

2. Professional Standards, and

3. Ethics;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify her employer(s) of the decision. To comply, the Member is required to:

i. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert or her employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The Member made multiple false benefit claims over several years;

• The Member’s behaviour was dishonest and deceitful;

• The fraud went on from 2012-2015, long enough for the Member to realize what she was doing and to stop the behaviour if she chose to do so;

• The value of the false claims was significant at $8,170.00;

• The Member’s behaviour showed disregard for the employer Benefit Plan.

The mitigating factors in this case were:

• The Member accepted full responsibility for her conduct by admitting to all the allegations and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;

• The Member admitted to the allegations when interviewed by the Facility;

• The Member has no prior discipline history with the College.

The proposed penalty provides for specific deterrence through:

• The oral reprimand; and

• The 4 month suspension of the Member’s certificate of registration.

The proposed penalty provides for general deterrence through:

• The 4 month suspension of the Member’s certificate of registration.

General deterrence is significant in this case as there are over 50 fraudulent cases to be heard by the Discipline Committee and it needs to send a message to the other members that misconduct involving benefit fraud will not be tolerated.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert as it will educate the Member with regards to the Code of Conduct, the Ethics Standard and the Professional Standards.

Overall, the public is protected by the 12 month employer notification as this will ensure the Member’s employer is aware of the misconduct even if the Member changes employers. The employer will be afforded an opportunity to be diligent in monitoring the Member’s practice on her return to the profession.

College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. Verde-Balayo (Discipline Committee, 2021): In this case, the member participated in the hearing but denied two of the allegations set out against her. The Discipline Committee Panel that heard this matter made findings of professional misconduct on all the allegations set out in the Notice of Hearing. The member committed acts of professional misconduct when she was involved in similar benefit fraud that took place over several years and allowed the member to receive at least $7,982.50 in false claims. The member was terminated from the facility and did not make any restitution. The penalty included an oral reprimand, a 4 month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification. This case has the identical penalty as what is being proposed for the case before this Panel as neither paid any restitution for their fraudulent claims.

CNO v. Velasquez (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member committed acts of professional misconduct when she was involved in similar benefit fraud that took place over several years and allowed the member to receive at least $11,080.00 in false claims. The member remained employed within the facility, but entered into a payment agreement with the facility whereby the member paid back the amount received. The penalty included an oral reprimand, a 3 month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.

Submissions were made by the Member.

The Member submitted that the penalty proposed in the Joint Submission on Order was what she had agreed to with the College.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 4 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at her own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct,

2. Professional Standards, and

3. Ethics;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into her behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on her certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify her employer(s) of the decision. To comply, the Member is required to:

i. Ensure that CNO is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide her employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert or her employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility.

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is achieved through the oral reprimand and a 4 month suspension of the Member’s certificate of registration that will send a clear message to the Member that employee benefit fraud will not be tolerated. General deterrence is achieved by the 4 month suspension of the Member’s certificate of registration which will send a strong message to the professional membership that employee benefit fraud will not be tolerated. Rehabilitation and remediation will be achieved through the 2 meetings with a Regulatory Expert and learning activities. The public will be protected through the 12 months of employer notification which will make the employer aware of the misconduct so that the employer can appropriately monitor the Member on her return to practice.

The penalty is also in line with what has been ordered in previous cases in similar circumstances.

I, Sherry Szucsko-Bedard, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.