DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Michael Hogard, RPN Chairperson
Tina Colarossi, NP Member Sylvia Douglas Public Member
Andrea Norgate, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for
) College of Nurses of Ontario
- and - )
NILO ESPERON ) PHILIP ABBINK for
Registration No. 9921230 ) Nilo Esperon
) PATRICIA HARPER
) Independent Legal Counsel
) Heard: June 29, 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 29, 2022, via videoconference.
The Allegations
The allegations against Nilo Esperon (the “Member”) as stated in the Notice of Hearing dated May 20, 2022 are as follows:
IT IS ALLEGED THAT:
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 St. Michael’s 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 2012-2016, you submitted false claims under the Facility’s employee group benefit plan (the “Benefit Plan”).
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 2012-2016, you submitted false claims under the Benefit Plan.
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 2012-2016, you submitted false claims under the Benefit Plan.
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 2012-2016, you submitted false claims under the Benefit Plan.
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 2012-2016, 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:
THE MEMBER
Nilo Esperon (the “Member”) obtained a degree in nursing from Galang Medical Center College, Manila, Philippines.
The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) in the General Class on September 16, 1999.
The Member is currently employed as an RN by Scarborough Health Network – General Site in Scarborough and Michael Garron Hospital in East York.
Between November 14, 2000 and February 13, 2017, the Member was employed as a full-time staff nurse at St. Michael’s Hospital in Toronto (the “Facility”). His employment was terminated as a result of the incidents described below.
THE BENEFIT PLAN
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.
The Member, as an RN at the Facility represented by the Ontario Nurses’ Association (“ONA”), was a member of the Benefit Plan through the collective agreement between ONA and the Facility. The Member’s family also had coverage under the Benefit Plan.
In relation to extended health care, the Benefit Plan provided the Member and his family with coverage for medical equipment and supplies, among other things. In particular, the Benefit Plan provided 100% reimbursement for up to 4 pairs of support stockings annually (per person), up to a maximum of $200/pair. To be eligible, the support stockings had to be prescribed by a physician and be medically necessary for the treatment of disease or injury.
Claims for equipment and supplies under the Benefit Plan, including support stockings, were to be submitted using a paper claim form with the receipt and prescription attached. The claim form included the following declaration to be signed by the employee submitting a claim:
Authorization and Signature
I certify that all goods and services being claimed have been received by me and/or my spouse or dependents, if applicable. I certify that the information in this form is true and complete and does not contain a claim for any expense previously paid for by this or any other plan. [emphasis added]
In the event there is suspicion and/or evidence of fraud and/or Plan abuse concerning this claim, I acknowledge and agree that Sun Life may investigate and that information about me, my spouse and/or dependents pertaining to this claim may be used and disclosed to any relevant organization including regulatory bodies, government organizations, medical suppliers and other insurers, and where applicable my Plan Sponsor, for the purpose of investigation and prevention of fraud and/or Plan abuse.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
From 2012 to 2016, the Member submitted false claims under the Benefit Plan and received a total of $9,587.50 in relation to the false claims.
In or around early 2017, the Facility and SunLife uncovered a scheme whereby employees of the Facility were submitting false benefit claims, including in relation to support stockings. The joint investigation conducted by the Facility and SunLife (the “Facility’s Investigation”) identified a porter at the Facility, Gener Valle, as the central figure in the scheme. The Facility’s Investigation concluded that Valle coordinated with other Facility employees to submit false claims to SunLife for products and services that were never purchased. Valle and the employee would then split the reimbursed funds.
As a result, the Facility and Sunlife interviewed the Member on February 2, 2017 in respect of claims he and his family submitted in 2012-2016 for support stockings. At the interview, the Member admitted to submitting false claims to SunLife for reimbursement under the Benefit Plan with Valle. Specifically, the Member admitted that neither he nor his family purchased the support stockings listed in the receipts submitted with the claims, nor did they obtain the prescriptions submitted in support of the claims.
The Member explained that he would partially fill out the benefit claim form, sign it, and provide it to Valle. Valle would then complete the form, including the amount of the claim, attach false receipts and prescriptions, and submit the claim form to SunLife.
Initially, at the February 2, 2017 interview, the Member claimed that when he received the reimbursement from SunLife, he provided all the money to Valle in exchange for support stockings. However, in a subsequent meeting on February 13, 2017, the Member retracted his statement and admitted that he actually split the reimbursement from SunLife with Valle and received no product in return.
The total amount paid to the Member for the claims between 2012 and 2016 was $9,587.50.
The Facility terminated the Member’s employment on February 13, 2017 as a result of this conduct.
If the Member were to testify, he would express deep remorse over his actions. The Member recognizes that he exercised bad judgement and that his dishonesty reflects poorly on him and his profession. He has taken the matter seriously, reflected on his conduct and reviewed CNO’s Ethics Standard.
BENEFIT FRAUD CASES
- To date, a total of 52 benefits fraud cases relating to 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
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.
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.
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
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.
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.
CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.
The Member admits and acknowledges that he contravened CNO’s Professional Standards and Ethics Standard when he submitted false claims under the Benefit Plan in 2012-2016.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 9 to 15 and 18 to 24 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that he misappropriated property from a workplace, as described in paragraphs 9 to 15 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing in that he falsified a record relating to his practice, as described in paragraphs 9 to 15 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that he signed or issued, in his professional capacity, a document that he knew or ought to have known contained a false or misleading statement, as described in paragraphs 9 to 15 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraph 5 of the Notice of Hearing, and in particular his conduct was dishonourable and unprofessional, as described in paragraphs 9 to 15 and 18 to 24 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 found 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 9-15 and 18-25 in the Agreed Statement of Facts. The Member admitted that between 2012 and 2016, he submitted false claims under the St. Michael’s Hospital’s (the “Facility”) employee benefit plan (the “Benefit Plan”) and received a total of $9,587.50 in relation to these false claims. The Member’s conduct breached the College’s Professional Standards, which provides that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards 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. The Member’s conduct was also a breach of the College’s Ethics Standard, which describes ethical values that are important to the nursing profession, including truthfulness, and that truthfulness means speaking and acting without intending to deceive.
Allegation #2 in the Notice of Hearing is supported by paragraphs 9-15 and 26 in the Agreed Statement of Facts. The Member admitted and the evidence shows that he misappropriated property from the Facility, in that from 2012 to 2016, the Member submitted false claims under the Benefit Plan and received a total of $9,587.50 in relation to these false claims. Receiving money with respect to false benefit claims constitutes misappropriation of property.
Allegation #3 in the Notice of Hearing is supported by paragraphs 9-15 and 27 in the Agreed Statement of Facts. The Member was eligible to participate in the Benefit Plan as an RN employed by the Facility. He admitted and the evidence shows that he falsified a record relating to his practice in that he submitted false claims to SunLife Insurance (“SunLife”) for reimbursement under the Benefit Plan. By submitting the false claim form, the Member falsified a record related to his practice.
Allegation #4 in the Notice of Hearing is supported by paragraphs 9-15 and 28 in the Agreed Statement of Facts. As an RN employed by the Facility, the Member was eligible to participate in the Benefit Plan. The Member admitted and the evidence shows that he signed or issued, in his professional capacity, a document that he knew or ought to have known contained a false or misleading statement, in that he submitted false claims under the Benefit Plan. Accordingly, the facts support the allegation that the Member signed, in his professional capacity, a document which contained a false or misleading statement.
Allegation #5 in the Notice of Hearing is supported by paragraphs 9-15, 18-24 and 29. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing as his participation in this Benefit Plan was due to his nursing employment. The Member’s conduct when he submitted false claims under the Benefit Plan from 2012 to 2016 was unprofessional as it demonstrated a severe and persistent disregard for his professional obligations.
The Panel also finds that the Member’s conduct was dishonourable, as it demonstrated an element of moral failing, dishonesty and deceit through repeatedly submitting false claims under the Benefit Plan. The Member also knew or ought to have known that his 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:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
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.
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 his 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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):
Code of Conduct,
Professional Standards, and
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:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his 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 his 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 his 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 his employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to CNO, the Expert, or his 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’s actions were a breach of trust; and
The misconduct involved a significant amount of money and occurred repeatedly for several years.
The mitigating factor in this case was:
- The Member admitted to the misconduct by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College.
Protection of the public is of paramount importance in penalty. This is achieved through specific and general deterrence, and by rehabilitation and remediation to avoid any repeat of the conduct in the future.
The proposed penalty provides for specific deterrence through the oral reprimand and the 4-month suspension of the Member’s certificate of registration, demonstrating to the Member that this behaviour is unacceptable.
The proposed penalty provides for general deterrence through the 4-month suspension of the Member’s certificate of registration, which will send a clear message to members of the profession that employee benefit fraud will not be tolerated.
College Counsel noted that general deterrence measures could strengthen members’ understanding that not all types of professional misconduct involve patient care and the concern that benefit fraud undermines public trust in the nursing profession.
The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College’s publications. This will help prepare the Member to return to ethical nursing practice.
Overall, the public is protected through the 12-month employer notification provision as there will be continued employer oversight as the Member returns to practice.
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 benefits fraud in the amount of $7,982.50 and 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 a 12-month period of employer notification.
CNO v. Velasquez (Discipline Committee, 2021): In this case, the misconduct involved benefits fraud in the amount of $11,080.00. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and a 12-month period of employer notification.
Submissions were made by the Member’ s Counsel.
The Member’s Counsel submitted that he agreed with College Counsel’s submissions and that further mitigating factors were:
The Member admitted to the facts at his second employer interview;
The Member has expressed remorse and agrees he showed poor judgement;
The Member has pled guilty which is the first step in making amends; and
The Member has no prior discipline history with the College.
Penalty Decision
The Panel accepts the Joint Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
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.
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 his 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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):
Code of Conduct,
Professional Standards, and
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:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into his 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 his 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 his 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 his employer(s) with a copy of:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
All documents delivered by the Member to CNO, the Expert, or his 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 addressed by the oral reprimand and the 4-month suspension of the Member’s certificate of registration, which will demonstrate to the Member that submitting false benefit claims is unacceptable. General deterrence is achieved by the 4-month suspension of the Member’s certificate of registration, which will send a clear message to members of the profession that employee benefit fraud will not be tolerated.
Rehabilitation and remediation will be achieved though the 2 meetings with a Regulatory Expert and various learning activities. Public protection is addressed through the 12-month period of employer notification so the employer can monitor the Member on his return to practice.
The penalty is also in line with what has been ordered in previous cases in similar circumstances.
I, Michael Hogard, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.