College of Nurses of Ontario v. Ying Hong Zhang, 2022 ONCNO 135165

DISCIPLINE COMMITTEE OF THE COLLEGE

OF NURSES OF ONTARIO

PANEL: Carly Gilchrist, RPN Chairperson

Sylvia Douglas Public Member

Tyler Hands, RN Member

Sherry Szucsko-Bedard, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for

) College of Nurses of Ontario

• and - )

YING HONG ZHANG ) CARINA LENTSCH for

Registration No. JE03177 ) Ying Hong Zhang

) PATRICIA HARPER

) Independent Legal Counsel

) Heard: August 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 August 29, 2022, via videoconference.

The Allegations

The allegations against Ying Hong Zhang (the “Member”) as stated in the Notice of Hearing dated May 26, 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 2013 to 2014, 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 2013 to 2014, 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 2013 to 2014, 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 2013 to 2014, 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 2013 to 2014, 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’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. Ying Hong Zhang (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on June 24, 2005. Her certificate was administratively suspended on February 17, 2021 and expired on March 19, 2021.

2. The Member was employed as an RPN at Baycrest Health Sciences in Toronto, Ontario (the “Facility”), at the time of the incidents described below. The Facility terminated the Member’s employment on July 10, 2019 as a result of these incidents.

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. In 2013 and 2014, the Member submitted false claims for medical services such as physiotherapy and products such as custom orthotics, and received $5,420 in store credits for items which were not covered by the plan, such as shoes.

6. In January 2019, the Facility uncovered benefits irregularities and conducted an internal investigation. As part of this investigation, the Member was interviewed by the Facility with respect to her claims. The Member admitted that she had participated in a fraudulent scheme. She admitted that she had never been to some of the service providers, and that an individual involved in the scheme would fill out claims forms and submit them for services that were not received.

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

BENEFIT FRAUD CASES

8. To date, a total of 58 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

9. 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.

10. 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.

11. 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

12. 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.

13. 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.

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

15. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

16. 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 9 to 15 above.

17. 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.

18. 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.

19. 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.

20. 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 9-16 in the Agreed Statement of Facts. The Member submitted false claims under the Baycrest Hospital’s (the “Facility”) employee benefit plan (the “Benefit Plan”) in 2013 and 2014 and received $5,420.00 in store credits in relation to those false claims. The College’s Ethics Standard documents ethical values are important to the nursing profession 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 integrity and breached the Professional Standards when she purposely submitted false claims for her own benefit. Being trustworthy is an essential component of a nurse’s professional integrity. The Member breached this trust when she falsified documentation and received compensation.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5-7 and 17 in the Agreed Statement of Facts. As set out in the Member’s employment agreement/or collective agreement, the Member had access to extended healthcare, dental and other insurance benefits. The Member misappropriated property from the Facility when she submitted and accepted store credits 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. Receiving non-medical merchandise with respect to false benefit claims constitutes misappropriation of property.

Allegations #3 and #4 in the Notice of Hearing are supported by paragraphs 5-7 and 18-19 in the Agreed Statement of Facts. The Member committed acts of professional misconduct when she falsified a record relating to her practice and signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement. As an employee at the Facility the Member received a Benefit Plan which provided coverage for extended health care, dental and other insurance benefits. The Member admitted to submitting falsified claims in 2013 and 2014. Furthermore, in signing the submission documents she would have known they contained false statements. Accordingly, the facts support the allegations that the Member falsified a record relating to her practice and signed or issued, in her professional capacity, a document which contained a false or misleading statement.

Allegation #5 in the Notice of Hearing is supported by paragraphs 5-7 and 20 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing as the Member had access to the Benefit Plan as a direct result of her nursing employment. The Member submitted false claims numerous times over a couple of years. This conduct was unprofessional as it demonstrated a serious disregard for her professional obligations by breaching the Ethics Standard and the Professional Standards.

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 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.

Penalty Submissions

Submissions were made by College Counsel.

College Counsel submitted that the Joint Submission on Order also provides in Appendix “A” an undertaking by the Member for the Member’s permanent resignation as a member of the College, effective August 26, 2022 (the “Undertaking”). The Member undertakes to:

a) Permanently resign as a member of the College, effective from the date the Member signs the Undertaking;

b) Not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future;

c) Agree that the public portion of the College’s Register will indefinitely reflect that the Member entered into an Undertaking with the Executive Director to permanently resign as a member of the College as part of an agreed resolution of allegations of professional misconduct, in addition to any other information that is required to be posted; and

d) Agree to permit the College to provide a copy of this Undertaking and/or its terms to a governing body that regulates nursing in Canada or elsewhere in response to an inquiry or otherwise.

The aggravating factors in this case were:

• The Member made multiple false benefit claims over a few years in the amount of $5,420.00;

• The Member’s behaviour was deliberate and deceitful as she used store credit to purchase non-medical items;

• The fraud occurred from 2013-2014 and was not a single lapse in judgment. The Member ought to have known better and could have stopped the behaviour if she chose to do so; and

• Having an employer benefit plan is a privilege and the Member was deceitful and took advantage of it.

The mitigating factors in this case were:

• The Member took responsibility with her employer when interviewed by the Facility;

• The Member provided a full and detailed explanation of the events to the Facility;

• 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; and

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

Specific deterrence is not essential in this case because the Member has already undertaken to permanently resign from the practice of nursing. In such circumstances, the penalty of an oral reprimand is sufficient.

General deterrence is achieved through a message that, if the Member had not resigned, she could have expected to receive a suspension as part of a penalty. This sends a message to other members of the profession that there will be serious consequences from this type of behaviour.

Overall, the public is protected by the resignation of the Member’s certificate of registration and the ability of the College to communicate this to any governing body that regulates nursing in Canada. Accordingly, the Panel does not need to impose further conditions in order to achieve protection of the public.

This penalty will give the public confidence that the nursing profession can self–regulate.

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.

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.

College Counsel provided one case in support of the proposed penalty of only a reprimand given a member’s undertaking to resign. This case had the identical penalty being sought by the College for the case being heard.

CNO v. Naval (Discipline Committee, 2016): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member committed an act of professional misconduct when he failed to participate in the Quality Assurance Program. The member admitted he was aware of the many attempts of the Quality Assurance Committee to get into contact with him but he chose not to respond. The penalty was an oral reprimand. College Counsel informed the Panel that the reason for the penalty was because the member had given the College an undertaking to permanently resign from the College.

Submissions were made by the Member’s Counsel.

The Member’s Counsel submitted that the penalty contained in the Joint Submission on Order was negotiated between the Member and the College.

The Member’s Counsel submitted the following mitigating factors:

• The Member was employed in the nursing profession for approximately 15 years and before this had no prior discipline history with the College;

• The Member was a valued member of the Facility she worked at and is a caring, compassionate and dedicated nurse;

• The Member is remorseful for her lapse in judgment and she quit the benefit fraud scheme after participating for 3 years;

• The Member has reflected and feels sad about ending her nursing career this way; and

• The Member agreed to the undertaking to permanently resign due to personal and health reasons and does not wish to practice nursing in the future.

The Member’s Counsel reinforced the proposed penalty and undertaking would provide for public protection, and that the Naval case was accepted by a previous panel of the Discipline Committee.

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.

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. In the normal course, 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.

In this case, because the Member has undertaken to permanently resign, the oral reprimand is a sufficient penalty and no other specific deterrence is required.

Furthermore, because of the Member’s resignation, it is not necessary to consider remediation and rehabilitation in determining the appropriate penalty.

General deterrence is also addressed as the Panel concluded that had the Member’s situation been different and no Undertaking given, the Panel would have ordered a suspension, and terms, conditions and limitations on the Member's certificate of registration, along with the oral reprimand which would have been in line with previous penalties.

Finally, the penalty of a reprimand is appropriate because the public is already protected through the permanent resignation of the Member’s certificate of registration and the Undertaking to never apply for registration as a nurse in Ontario again in the future.

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

I, Carly Gilchrist, 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.