College of Nurses of Ontario v. Sarah Fejedelem, 2022 ONCNO 135160

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson Sylvia Douglas Public Member Tomoko Fukushima, RN Member Carly Hourigan Public Member Karen Laforet, RN Member

BETWEEN:

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

• and - ) SARAH FEJEDELEM ) CHRIS BRYDEN for Registration No. 0108837 ) Sarah Fejedelem ) KIMBERLEY ISHMAEL ) Independent Legal Counsel ) Heard: July 5, 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 July 5, 2022, via videoconference.

The Allegations

The allegations against Sarah Fejedelem (the “Member”) as stated in the Notice of Hearing dated March 21, 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 Nurse at Toronto Western 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 2013 to 2017, you submitted 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 Nurse at the Facility, you misappropriated property from a client or workplace, and in particular, in or around 2013 to 2017, you submitted 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 Nurse at the Facility, you falsified a record relating to your practice, and in particular, in or around 2013 to 2017, you submitted 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 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 2013 to 2017, you submitted 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 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 2013 to 2017, you submitted 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’s Counsel 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. Sarah Fejedelem (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on July 20, 2001.

2. The Member has been employed as an RN at Toronto Western Hospital (the “Facility”), located in Toronto, Ontario since 2001.

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. SunLife Insurance (“SunLife”) 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 online, plan members must confirm that the information submitted is accurate and true, and agree, if requested, to provide original receipts and/or supporting documents.

5. The Benefit Plan provides that the Member and her dependents were entitled to orthopaedic shoes, when they are required for the correction of deformity of the bones and muscles and provided they are not solely for athletic use, limited to a maximum of $250 in a calendar year. The Member was also entitled to the reasonable and customary services of a registered massage therapist, limited to a maximum of $400 per calendar year, and a maximum of $200 per calendar year for the services of a podiatrist.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

6. Between 2013 and 2016, the Member submitted false claims for a variety of medical services and products under the Benefit Plan and received approximately $5,892.50 in relation to the false claims in relation to those claims. The false claims included claims for orthotics, orthopaedic shoe modifications, and massage therapy.

7. Following an investigation by SunLife into a service provider who was found to have been participating in benefit fraud, the Facility identified the Member as a potential participant in such fraudulent activity.

8. The Member admitted to the Facility that she submitted false claims. The Member made restitution of $5,892 and served a five-day, unpaid suspension.

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 their 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 on June 25, 2016.

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 6 to 8 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 6 to 8 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 6 to 8 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 6 to 8 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 6 to 8 and 10-16 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 dishonourable and unprofessional.

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 6–8 and 10-17 in the Agreed Statement of Facts. The Member admitted to this allegation. The Member submitted false claims under Toronto Western Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) for a variety of medical services and products between 2013 and 2016 and received $5,892.50 in relation to these false claims. The College’s Professional Standards indicate nurses are accountable for conducting themselves with integrity and with behaviours that promotes respect for the profession. The College’s Ethics Standard, in relation to truthfulness is defined as speaking or acting without intending to deceive. The Member deceived the Facility by submitting multiple false claims over a long period of time. The Member demonstrated an intentional lack of accountability to the public through these repeated actions. Accordingly, the Member breached the College’s Ethics Standard and the Professional Standards.

Allegation #2, in the Notice of Hearing is supported by paragraphs 6–8 and 18 in the Agreed Statement of Facts. The Member admitted to this allegation. The Member misappropriated property from the Facility by submitting false claims under the Benefit Plan between 2013 and 2016 and received $5,892.50 in relation to these false claims. Receiving money with respect to false benefit claims constitutes misappropriation of property.

Allegations #3 and #4 in the Notice of Hearing are supported by paragraphs 6-8, 19 and 20 in the Agreed Statement of Facts. The Member admitted to these allegations. The Member falsified a record related to her practice and signed, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement when she submitted false claims to the Facility’s Benefit Plan between 2013 and 2016. The Member was employed by the Facility to work exclusively as a RN and in exchange for her nursing services was provided access to the Facility benefits program. The Member signed a document that contained a false or misleading statement within the context of her RN employee relationship. Accordingly, the facts support the allegations that the Member, falsified a record related to her practice.

Allegation #5 in the Notice of Hearing is supported by paragraphs 6-8, 10-16 and 21 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing and in failing to meet the standards of the profession and in particular the College’s Professional Standards and the Ethics Standard was unprofessional as it demonstrated a serious and intentional disregard for her professional obligation. The Member’s actions took place over several years—long enough for the Member to stop and take accountability and her failure to act with the integrity expected by the members of the profession and the public demonstrated a serious and persistent disregard for her professional obligations.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated a repeated element of dishonesty and deceit through making false claims to the Facility’s Benefit Plan. The Member also knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Penalty

College Counsel and the Member’s Counsel 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 3 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

College Counsel submitted that the Panel should accept the Joint Submission on Order as it was a product of negotiations between the College and the Member who was represented by experienced counsel. College Counsel submitted that the Panel generally must accept the Joint Submission on Order unless to do so would bring the administration of justice into disrepute or be contrary to the public interest. College Counsel submitted that this Joint Submission on Order is in the public interest in that (i) the proposed order reflects the aggravating and mitigating factors in this case, (ii) meets the goals of penalty and (iii) is consistent with prior decisions of this Discipline Committee.

The aggravating factors in this case were:

• The Member demonstrated serious and persistent dishonesty from 2013–2016 resulting in approximately $5,892.50 in fraudulent claims from the Facility’s Benefit Plan; and

• The Member’s behaviour was not a lapse in judgment since this occurred repeatedly over time, long enough for the Member to reconsider and take accountability for her actions.

The mitigating factors in this case were:

• The Member took responsibility with her employer, admitted to her actions and made full restitution;

• The Member has no prior discipline history with the College; and

• The Member admitted to the allegations, took part in the resolution by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College, and appeared before the Panel.

College Counsel submitted that the Joint Submission on Order meets the goals of penalty. The goal of any penalty is to protect the public, maintain high professional standards and enhance the public’s confidence in the College’s ability to regulate nurses. This is achieved by a penalty that addresses specific deterrence, deterring this particular Member from engaging in similar conduct, general deterrence meaning deterring the membership at large from engaging in similar conduct and rehabilitation and remediation of the Member allowing her to return to practice. College Counsel submitted the penalty proposed in this case strikes the right balance between those goals.

The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration, which sends a strong message to the profession that this conduct is unacceptable.

The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration. The oral reprimand ensures the Member understands how her actions are perceived by other members of the profession and the public. The suspension sends a strong signal to the Member and will deter her from engaging in similar misconduct in the future.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert. The Member will be afforded the opportunity to return to ethical practice through completion of the College’s learning modules on the College’s Professional Standards, Code of Conduct and Ethics.

Overall, the public is protected through the 12 months of employer notification. The penalty sought shows that this conduct is serious and unacceptable. The penalty shows to the public that this profession is capable of governing itself and it strikes the right balance for deterrence, remediation, rehabilitation and public safety.

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 misconduct involved a nurse who submitted fraudulent benefit claims over a number of years that amounted to $7,982.50. The member did not make 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. The distinguishing factor between this case and the case before this Panel is that in the case before this Panel the Member made restitution of the total amount.

CNO v. Velasquez (Discipline Committee, 2021): In this case, the misconduct involved submissions of false benefit claims that took place between 2013–2016 in the amount of $11,080.00. The member made restitution of the total amount and cooperated with the College. 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’s Counsel.

The Member’s Counsel submitted that, in regard to the mitigating factors:

• The Member has been practicing for approximately 20 years with no prior disciplinary history with the College;

• The Member is regretful and remorseful; and

• The Member entered into a Joint Submission on Order 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 3 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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 the Member’s 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.

The proposed penalty provides for general deterrence through the 3-month suspension of the Member’s certificate of registration. In light of the multitude of fraudulent benefit claims referred to the College’s Discipline Committee, the Panel finds that the penalty sends a clear statement to the members that benefit fraud will not be condoned.

The proposed penalty provides for specific deterrence through the oral reprimand and the 3-month suspension of the Member’s certificate of registration.

The proposed penalty provides for remediation and rehabilitation through the two meetings with a Regulatory Expert, serving to deepen the Member’s understanding of her obligations to the profession and to the public.

Overall, the public is protected through the 12-month employer notification period. The penalty agreed demonstrates that this conduct is serious and has attracted a serious sanction as a result. Taken together, the penalty demonstrates to the public that nursing is a profession that is capable of governing itself.

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

I, Mary MacNeil, 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.