College of Nurses of Ontario v. Rosales, 2023 ONCNO 69924

PANEL: Sherry Szucsko-Bedard, RN Chairperson

Jay Armitage Public Member

Ramona Dunn, RN Member

Sandra Larmour Public Member

Michael Schroder, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DENISE COONEY for

) College of Nurses of Ontario

and - )

MARY ANN ROSALES ) NO REPRESENTATION for

Registration No. 8620973 ) Mary Ann Rosales

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: March 27, 2023

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 March 27, 2023, via videoconference.

The Allegations

The allegations against Mary Ann Rosales (the “Member”) as stated in the Notice of Hearing dated January 24, 2023 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 Toronto General 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 2015 to 2016:

a. You submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan; and/or

b. You submitted to the Facility’s employee group benefit plan prescriptions issued using a physician’s stamp, without the physician’s knowledge, permission and/or authorization.

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 Toronto General Hospital in Toronto, Ontario (the “Facility”), you misappropriated property from a client or workplace, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group 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 Toronto General Hospital in Toronto, Ontario (the “Facility”), you falsified a record relating to your practice, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group 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 Toronto General Hospital in Toronto, Ontario (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 2015 to 2016:

a. You submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan; and/or

b. You submitted to the Facility’s employee group benefit plan prescriptions issued using a physician’s stamp, without the physician’s knowledge, permission and/or authorization.

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 Toronto General Hospital in Toronto, Ontario (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 2015 to 2016:

a. You submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan; and/or

b. You submitted to the Facility’s employee group benefit plan prescriptions issued using a physician’s stamp, without the physician’s knowledge, permission and/or authorization.

Member’s Plea

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

Agreed Statement of Facts

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

MEMBER

Member

Mary Ann Rosales (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) in the General Class on January 23, 1986. As of December 29, 2021, the Member has been registered as an RN in the Non-Practising Class.
At the time of the incidents described below, the Member was employed as a Patient Resource Coordinator on the Multi Organ Transplant Unit at Toronto General Hospital, located in Toronto, Ontario (the “Facility”). The Member resigned her employment at the Facility on June 11, 2018, in relation to the incidents described below.

BENEFIT PLAN

Benefit Plan

The Facility offers its employees a self-insured group insurance policy by which the Facility provides coverage to employees for extended health care, dental, and other insurance benefits (the “Benefit Plan”). SunLife Insurance (“SunLife”) administers the Benefit Plan on behalf of the Facility. The Facility, however, is the plan sponsor for the Benefit Plan, and therefore funds the cost of claims paid out to employees under the plan. Employees contribute to the cost of the Benefit Plan as set out in their employment agreement and/or collective agreement, based on their election for individual or family coverage.
To submit a benefit claim, members of the Benefit Plan were required to complete a medical expense claim form provided by Sun Life. The medical expense 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 all goods or services were received as claimed and that “the information provided for this claim is true and complete”, and then sign.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Incidents Relevant to Allegations of Professional Misconduct

Between December 14, 2015 and December 5, 2016, the Member submitted claims totaling $4,350 to the Benefit Plan.
In support of these claims, the Member submitted prescriptions for orthopedic footwear and compression stockings from a physician who works at the Facility in nephrology and renal transplantation. The Member was not the physician’s patient. The Member used the physician’s stamp without their knowledge or authorization.
On May 8, 2018, the Facility interviewed the Member about her claims. The Member admitted to having used the physician’s stamp without their authorization to create fraudulent prescriptions to support the claims submitted to the Benefit Plan.
The Facility accepted the Member’s resignation on June 11, 2018.
The Member did not make restitution.
If the Member were to testify, she would apologize and say she takes responsibility for her conduct.

BENEFIT FRAUD CASES

Benefit Fraud Cases

To date, at least 80 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

CNO 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 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.
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 she contravened CNO’s Professional Standards and Ethics Standard. The Member admits and acknowledges that the claims, which were supported by fraudulent prescriptions, were false claims for which she accepted payment under the Benefit Plan. She further admits and acknowledges that she submitted claims supported by prescriptions issued using a physician’s stamp, without the physician’s knowledge, permission, and/or authorization.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

Admissions of Professional Misconduct

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 10 and 12 to 18 above.
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 10 above.
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 10 above.
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 10 above.
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 10 and 12 to 18 above.

Submissions on liability were made by College Counsel.

College Counsel asked the Panel to accept the Agreed Statement of Facts, as well as the Member’s admissions to all the allegations as set out in paragraphs 19 to 23 of the Agreed Statement of Facts and, on the basis of those facts and admissions, to make findings of professional misconduct with respect to the allegations in the Notice of Hearing. College Counsel submitted that the Panel had taken the Member’s written and verbal plea, which was voluntary and informed. College Counsel submitted that based on the Agreed Statement of Facts, which specifically describes the facts in relation to the allegations, the Panel had enough evidence to find that the Member committed professional misconduct as set out in all the allegations in the Notice of Hearing.

College Counsel reviewed allegations #1(a), (b), #5(a) and (b) with the Panel. With regard to allegations #1(a) and (b), College Counsel submitted that these allegations are supported by the Agreed Statement of Facts, which contained evidence of the relevant College standards of the profession, as well as the Member’s admissions that those standards were breached.

With regard to allegations #5(a) and (b), College Counsel submitted that the parties agreed that the Member’s conduct was relevant to the practice of nursing and was dishonourable and unprofessional. College Counsel submitted that this agreement was part of a resolution reached between the College and the Member.

The conduct at issue, which is that the Member submitted false claims in the amount of $4,350.00 through the Toronto General Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) between December 14, 2015 and December 5, 2016 is relevant to the practice of nursing as claims were submitted as part of her nursing employment at the Facility.

College Counsel submitted that having regard to all of the circumstances, members of the profession would consider the Member’s conduct to be unprofessional and dishonourable. The Member’s conduct was unprofessional as submitting false claims to the Benefit Plan constitutes a serious and persistent disregard for her professional obligations to act with the honesty and integrity required of a nurse. The Member’s conduct was dishonourable as it involved lying, deceit and dishonesty. The Member failed to act with integrity which the public expects from the nursing profession, and by doing so, has brought shame upon the entire profession.

The Member 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 and 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(a), (b), #2, #3, #4(a), (b), #5(a) and (b) of the Notice of Hearing. As to allegations #5(a) and (b), 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.

Allegations #1(a) and (b) in the Notice of Hearing are supported by paragraphs 5-10 and 12-19 in the Agreed Statement of Facts. The Member admitted to submitting false claims through the Facility’s Benefit Plan between December 14, 2015 and December 5, 2016 for orthopaedic footwear and compression stockings and to receiving $4,350.00 in relation to those false claims. In support of the false claims, the Member submitted prescriptions from a physician who works at the Facility by utilizing the physician’s stamp without their authorization. The College’s Ethics Standard outlines that truthfulness is an important ethical value in the nursing profession. The Member purposely tried to deceive the Benefit Plan her employer provided when she submitted false claims and received money for her own personal gain. The Member breached the College’s Professional Standards when she demonstrated a lack of integrity through using the physician’s stamp without their knowledge in an attempt to support the false claims.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5-10 and 20 in the Agreed Statement of Facts. The Member admitted to misappropriating property from the Facility when she submitted false claims through the Facility’s Benefit Plan and received money in relation to those false claims. Receiving money with respect to false benefit claims constitutes misappropriation of property.

Allegations #3, #4(a) and (b) in the Notice of Hearing are supported by paragraphs 5-10 and 21-22 in the Agreed Statement of Facts. The Member admitted to falsifying a record relating to her practice and to signing or issuing, 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. The Member, as a Registered Nurse (“RN”) employee of the Facility, had access to the Benefit Plan by virtue of her employment as a nursing professional and so her actions were related to her practice as a nurse. When she signed and submitted claim forms certifying that “the information provided for this claim is true and complete” she did so in her capacity as an RN employee of the Facility. The Member attested to a false statement when she submitted the false claims. 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 that she knew or ought to have known contained a false or misleading statement.

Allegations #5(a) and (b) in the Notice of Hearing are supported by paragraphs 5-10, 12-18 and 23 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in submitting false benefit claims was clearly relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations as set out in the Professional Standards and the Ethics Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through submitting false benefit claims to the Facility’s Benefit Plan for the purpose of obtaining monetary funds for her own personal gain. The Panel found that the conduct of creating prescriptions, endorsed through the unauthorized use of a colleague’s physician stamp, particularly deceitful. The Member 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 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 three 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 and agreement by the Member for the Member’s permanent resignation as a member of the College, effective March 27, 2023 (the “Undertaking”). The Member undertakes, acknowledges and agrees to:

Permanently resign as a member of the College, effective from the date that the Order made by the Discipline Committee in accordance with the Joint Submission on Order becomes final;
Not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future;
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;
No longer have a right to the issuance or reinstatement of a Certificate of Registration from the College;
No longer have a right to use the title “Nurse”, “Registered Nurse”, “Registered Practical Nurse”, “RN”, “RPN“ or a variation, an abbreviation or an equivalent in another language;
No longer have a right to hold herself out as a Nurse, Registered Nurse, Registered Practical Nurse or as a person who is qualified to practice in Ontario as a Nurse, Registered Nurse or Registered Practical Nurse;
No longer have a right to engage in the practice of nursing in any capacity; and
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 the case were:

The Member submitted false claims to her employer funded Benefit Plan in the amount of $4,350.00 over a lengthy period of time, being between December 14, 2015 and December 5, 2016;
In support of the false claims, the Member submitted prescriptions that had been signed using a physician’s signature stamp without the physician’s authorization;
The Member’s conduct involved serious and persistent dishonesty and deceit;
The Member breached the trust placed in her by the Facility, the plan administrator and the public; and
The Member breached the trust of her healthcare colleagues in that using a physician’s stamp without authorization is clearly improper.

The mitigating factors in the case were:

The Member took responsibility with the Facility when she was confronted regarding her conduct;
The Member took responsibility by admitting to the allegations and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;
The Member has no prior discipline history with the College; and
The Member has been a member of the College for over 30 years.

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 the oral reprimand and the fact that the findings will be publicly posted indefinitely and sends a clear message to other members of the profession that there are 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 terms 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. Zhang (Discipline Committee, 2022): 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 plan misuse in the amount of $5,420.00. The member did not make restitution. The member signed an undertaking to permanently resign as a member of the College. The penalty was an oral reprimand.

CNO v. Taylor (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member misappropriated $4,195.00 through submitting false benefit claims to her employer funded benefit plan. 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.

CNO v. Vilgan (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the member misappropriated $4,480.00 through submitting false benefit claims to her employer funded benefit plan. The member made restitution. 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.

The Member was given an opportunity by the Panel to make submissions on penalty. The Member declined to make any submissions.

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 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 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 not undertaken to permanently resign from the College, 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 an oral reprimand is appropriate because the public is already protected through the permanent resignation 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, Sherry Szucsko-Bedard, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.