College of Nurses of Ontario v. Kovaleva, 2022 ONCNO 135438

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson Neil Hillier, RPN Member Karen Laforet, RN Member Sandra Larmour Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for ) College of Nurses of Ontario

• and - ) OLGA KOVALEVA ) ADRIENNE ANDERSON for Registration No. 0409094 ) Olga Kovaleva ) PATRICIA HARPER ) Independent Legal Counsel ) Heard: September 23, 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 September 23, 2022, via videoconference.

The Allegations

The allegations against Olga Kovaleva (the “Member”) as stated in the Notice of Hearing dated June 15, 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 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 2017, 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 Nurse at the Facility, you misappropriated property from a client or workplace, and in particular, in or around 2013 to 2017, 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 Nurse at the Facility, you falsified a record relating to your practice, and in particular, in or around 2013 to 2017, 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 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 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 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 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. Olga Kovaleva (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on March 11, 2004.

2. The Member was employed as an RN at Baycrest Health Sciences in Toronto, Ontario (the “Facility”) from 2004 to 2019. The Facility terminated the Member’s employment on July 10, 2019 as a result of the incidents described 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 2013 and 2017, the Member submitted false claims for a variety of medical services and products under the Benefit Plan.

6. In January 2019, the Facility uncovered benefits irregularities and conducted an internal investigation. As part of this investigation, the Facility identified a series of claims totalling $11,345 that were submitted by the Member which the Facility deemed suspicious. The suspicious claims included claims for orthopaedic shoes, custom orthotics, lumbo-sacral supports, wrist supports, compression stockings, chiropractic treatment, massage therapy and physiotherapy.

7. The Member was interviewed by the Facility with respect to her claims. The Member admitted that she had never received several of the services included in the false claims. The Member explained that she would sign blank claim forms which would be completed and submitted by another person, and she would split the reimbursement with others involved in the scheme. The Member received approximately $6,420 from the false claims she submitted.

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

9. If the Member were to testify, she would express deep remorse for her actions and apologize for her conduct. The Member would also testify that she appreciates the significance of her actions and takes accountability for her mistakes.

BENEFIT FRAUD CASES

10. To date, a total of 75 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

11. 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.

12. 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 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. 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.

13. 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

14. 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.

15. 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.

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

17. 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

18. 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 9 and 11 to 17 above.

19. 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 9 above.

20. 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 9 above.

21. 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 9 above.

22. 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 9 and 11 to 17 above.

Submissions on liability were made by College Counsel.

College Counsel submitted that the Member admitted to allegation #1, whereby she breached the standards of practice of the profession. College Counsel also submitted that the parties had put the relevant standards of the profession into evidence through the Agreed Statement of Facts, thus providing the Panel with a basis on which to make findings that the Member had breached standards of the profession.

With regard to allegation #5, the Member admitted to committing acts of unprofessional and dishonourable conduct relevant to the practice of nursing. The Member’s access to the Baycrest Hospital’s (the “Facility”) employee benefit plan (the “Benefit Plan”) was based on her employment as a Registered Nurse (“RN”). The abuse of that Benefit Plan and continued dishonesty from 2013 to 2017 showed serious departures of conduct befitting the profession of nursing. The ongoing deceit demonstrated an element of moral failing in that she knew or ought to have known that her conduct would be deemed dishonourable by members of the profession.

The Member’s Counsel made no submissions on liability.

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 4 –9 and 11–18 in the Agreed Statement of Facts. The Member admitted to submitting false claims through the Facility’s Benefit Plan for a variety of medical services and products between 2013 and 2017 and to receiving approximately $6,420.00 in relation to these false claims. The College’s Professional Standards indicate nurses are accountable for conducting themselves with integrity and with behaviours that promote respect for the profession. The College’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including maintaining commitments, including a duty to uphold the standards of the profession and truthfulness—meaning to speak or act without intent to deceive. The Member deceived the Facility by submitting a number of false claims over a five-year period. The Member demonstrated an intentional lack of accountability to the public through these repeated actions. Accordingly, the Member contravened the College’s Ethics Standard and the Professional Standards.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5–9 and 19 in the Agreed Statement of Facts. The Member admitted to misappropriating property from the Facility by submitting false claims to the Benefit Plan between 2013 and 2017 and receiving approximately $6,420.00 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 4 -9, 20 and 21 in the Agreed Statement of Facts. The Member admitted to falsifying a record relating to her practice and to signing, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement by submitting false claims to the Facility’s Benefit Plan between 2013 and 2017. The Member was employed by the Facility to work exclusively as an RN and in exchange for her nursing services was provided access to the Facility’s Benefit Plan. The Member signed claim forms that contained false or misleading statements within the context of her RN employee relationship. Accordingly, the facts support the allegations that the Member falsified a record relating to her practice and signed, in her professional capacity, a document that she knew contained a false or misleading statement.

Allegation #5 in the Notice of Hearing is supported by paragraphs 4 –9, 11–17 and 22 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct was clearly relevant to the practice of nursing in that she failed to meet the standards of the profession, in particular the College’s Professional Standards and the Ethics Standard. The Member’s conduct was unprofessional as it demonstrated a serious and intentional disregard for her professional obligations in breaching these standards. The Member’s actions took place over several years which was 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, fell below the standards of a professional and failed to meet the obligations the public expects professionals to meet.

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 three months of the date that this Order becomes final.

Penalty Submissions

Submissions were made by College Counsel.

College Counsel submitted that a penalty consisting of one element, being a reprimand, was appropriate in the circumstances of this case because the Member had entered into an undertaking to permanently resign from the College.

The Joint Submission on Order included, at Appendix “A”, the undertaking by the Member for the Member’s permanent resignation as a member of the College, effective September 21, 2022 (the “Undertaking”). The Member undertook 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) No longer have the right to use the title “Nurse”, “Registered Nurse”, “Registered Practical Nurse”, “RN”, “RPN” or a variation, an abbreviation or an equivalent in another language or engage in the practice of nursing in any capacity;

d) Agree that the public portion of the College’s Register will 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; and

e) 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’s serious and persistent dishonesty from 2013 – 2017 at the expense of the employer-funded benefit plan resulting in her receiving approximately $6,420.00;

• The Member’s behaviour was not a single lapse in judgment since she showed a pattern of submitting false claims for multiple services. She had opportunity to stop this behaviour and chose not to; and

• The Member abused the trust the employer placed in her.

The mitigating factors in this case were:

• The Member took responsibility with her employer and admitted to the significance of her actions;

• The Member suffered employment-related circumstance;

• 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.

Specific deterrence is not essential in this case because the Member has agreed to an Undertaking 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. Publicizing the Undertaking rather than a quiet resignation demonstrates the College’s ability to regulate its members. Accordingly, the Panel does not need to impose further conditions in order to achieve protection of the public.

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 member who submitted false benefit claims over a number of years that amounted to $7,982.50. The member did not make restitution. This case presents similar mitigating and aggravating factors and sets the bar for penalty for this type of conduct. The distinguishing factor between this case and the case before this Panel is that the Member has agreed to an Undertaking.

CNO v. Zhang (Discipline Committee, 2022): In this case, the misconduct is similar in circumstances of repeated false benefit claims over a two-year period that amounted to $5,420.00. The member did not make restitution. The penalty included an oral reprimand and the member signed an Undertaking to permanently resign as a member of the College.

Submissions were made by the Member’s Counsel.

The Member’s Counsel submitted that she agreed with and supported College Counsel’s submissions. The Member’s Counsel further submitted that the Member has been a nurse for over 40 years without any prior discipline history. The Member’s conduct does not reflect on her as a person and she has been fully cooperative and accountable for her actions and has expressed remorse. The Joint Submission on Order was a product of negotiation between experienced counsel and should be accepted. The Member is looking forward to putting all of this behind her.

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 three 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 needed. Since the Member has permanently resigned remediation and rehabilitation are not required.

General deterrence is also addressed as the Panel concluded that had the Member not given an Undertaking to resign, the Panel would have ordered a suspension, terms, conditions and limitations on the Member’s certificate of registration, and an oral reprimand which would have been in line with previous penalties.

Finally, the penalty of reprimand is appropriate because the public is already protected through the permanent resignation of the Member’s certificate of registration and the Undertaking to not apply for membership with the College of Nurses as a registered Nurse or Practical Nurse at any time in the future.

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.