College of Nurses of Ontario v. Valdez, 2023 CanLII 96471

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Sherry Szucsko-Bedard, RN Chairperson Sylvia Douglas Public Member David Edwards, RPN Member Tyler Hands, RN Member Sandra Larmour Public Member

BETWEEN:

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

• and - )

MARIA JEANNETTE T. VALDEZ ) NO REPRESENTATION for Registration No. IC07802 ) Maria Jeannette T. Valdez

) KIMBERLEY ISHMAEL ) Independent Legal Counsel

) Heard: March 13, 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 13, 2023, via videoconference.

As Maria Jeannette T. Valdez (the “Member”) was not present, the hearing recessed for 15 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.

College Counsel provided the Panel with evidence that the Member had been sent the Notice of Hearing on January 31, 2023 by way of an affidavit from [ ], Prosecutions Clerk, dated February 1, 2023, confirming that [the Prosecutions Clerk] sent correspondence, which included the Notice of Hearing, on January 31, 2023 to the Member’s last known address on the College Register.

The Panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing and of the fact that if she did not attend it, the hearing may proceed in her absence. Accordingly, the Panel decided to proceed with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated January 30, 2023 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 2011 to 2015, 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 2011 to 2015, 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 2011 to 2015, 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 2011 to 2015, 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 2011 to 2015, you submitted and/or accepted payment for false claims under the Benefit Plan.

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member registered with the College as a Registered Practical Nurse (“RPN”) on May 28, 1993. She was employed at the Baycrest Hospital (the “Facility”) since 1988 and was represented by the Service Employees International Union (“SEIU”). 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. Coughlin & Associated Ltd. (“Coughlin”) administers the employee group benefit plan (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. To submit a benefit claim, members of the Benefit Plan would complete a medical expense claim form provided by Coughlin. 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 the information given is true, correct and complete to the best of [their] knowledge”.

Between 2011 to 2015, the Member submitted claims for services and medical products (such as physiotherapy, compression stockings, and orthotics) under the Benefit Plan and received $9,655.00 in relation to those claims.

In January 2019, the Facility uncovered benefits irregularities and conducted an internal investigation. On April 9, 2019, the Facility interviewed the Member regarding her claims. She admitted to submitting the false claims and that she was in violation of the Facility’s “Code of Conduct” and “Theft and Fraud Policy”.

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

The Panel heard the testimony of 4 witnesses, one of which was received by way of affidavit. In addition to the oral evidence, the Panel also received 17 exhibits submitted into evidence including notes from the interview with the Member, correspondence, and the Facility’s relevant policies.

In order to determine whether or not the Member committed acts of professional misconduct as set out in paragraphs 1 through 5 of the Notice of Hearing, the Panel addressed the following issues:

• Did the Member submit false benefit claims as alleged?

• If so, would those actions constitute professional misconduct?

The Panel found that the Member committed acts of professional misconduct when she submitted false claims and accepted payment for those false claims through the Facility’s Benefit Plan. Specifically, the Member breached the standards of practice of the profession, misappropriated property from her workplace, falsified a record relating to her practice, and signed in her professional capacity, a document that she knew or ought to have known contained false or misleading statements. The Panel also found that the Member’s conduct would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

The Evidence

The Panel received 17 exhibits from the College and heard testimony from four witnesses, two of whom were involved in the discovery of the benefits fraud scheme and/or the subsequent investigations that took place as a result. The Panel also received and reviewed an affidavit from the benefits administrator regarding the claims submitted by the Member and paid out under the Facility’s Benefit Plan.

Witness #1 – [Witness 1] (“[ ]”)

[Witness 1] is an Advanced Practice Consultant who has been employed with the College since 2022. She was previously employed as a nurse with over 16 years of practice experience. At the College, her responsibilities include providing guidance to members on nursing accountabilities outlined in the College’s standards to ensure they can provide safe and ethical care.

While [Witness 1] never worked directly with the Member, she had an opportunity to review the case file and to provide the Panel with the applicable College standards that were in place at the time of the misconduct. [Witness 1] identified three Professional Standards documents dated June 2009 (Exhibit #4), August 2013 (Exhibit #5) and May 2015 (Exhibit #6) respectively as well as the Ethics Standard dated June 2009 (Exhibit #7).

The Panel was satisfied that [Witness 1] had no personal or professional interest in the outcome of the hearing and that she appeared direct and truthful in her answers. The Panel accepted the testimony of [Witness 1] as credible.

Witness #2 – [Witness 2] (“[ ]”)

[Witness 2] is the Vice President of Human Resources and Chief Human Resources Officer with the Facility, a position she has held for approximately 1 year. Prior to her current position, [Witness 2] started at the Facility in 2013 as a Human Resources Business Partner. She subsequently held a variety of management roles including Management of Talent, Manager of Employee Labour Relations. In 2018, [Witness 2] was promoted to Director of Human Resources, which was the position she held most recently, prior to her promotion to Vice President.

[Witness 2] provided the Panel with background information on how levels of coverage are determined. She testified that some of it is governed by what is bargained for centrally, as many of the employees are part of unionized groups. [Witness 2] testified that the Member was covered under the SEIU benefits program as evidenced by two SEIU benefit program booklets dated 2009 and 2015 which were entered as Exhibits 8 and 9. She testified that in the case of the Facility, their employees are offered benefits that are of greater value than what was bargained for such as physiotherapy which is considered “unlimited coverage,” which means there is no dollar cap and that it is based on what the employee needs and on what is necessary and customary.

[Witness 2] described the administration of benefits at the Facility to employees between 2013, when she initially was hired with the Facility and 2015. [Witness 2] testified that employees have access to extended health and dental benefits and the type of benefit in question was the extended health. She provided examples of items and services that fall into the extended health category including prescription drugs, physiotherapy and medical equipment, such as medical-grade compression stockings. [Witness 2] testified that some of the administration of benefits is done when an employee makes a claim, such as for physiotherapy. The employee pays up front and then they submit a paper claim with their proof that they had the services. These paper claim forms get mailed to the benefits administrator, Coughlin who adjudicates them and then reimburses the employee. [Witness 2] testified that the plan is self-insured meaning 75% of the premiums are paid out by the employer and the remaining 25% are paid from what employees contribute into the plan. She testified that she did not believe there was anything different in how the benefits were administered between 2011 and when she started with the organization in 2013, although she did not have first-hand knowledge of how the plan was administered at that time. [Witness 2] confirmed the two benefit booklets in place between 2011 and 2015 (Exhibit #8 and Exhibit #9) and testified that the benefits booklets would set out the coverage and corrections would have to be made when there were changes in coverage and the documents did not line up to with what employees were eligible for.

[Witness 2] testified that they were made aware of three schemes that were uncovered through the course of the Facility’s workplace investigation. She described the two schemes that employees were involved in, and they were referred to as “Ring 1” and “Ring 2”. She identified the Member as being involved in Ring 1 and provided further details on that scheme to the Panel. [Witness 2] said that Ring 1 was organized by an internal ringleader, which meant someone who was an employee at the Facility would organize the administration of the fraud. This individual was identified as a Unit Clerk at the Facility and that she would either seek people out when they became full-time or people would know to contact her. [Witness 2] said the employees at the time would sign a blank claim form and the ringleader would fill out and submit the paperwork. When the employees received their payment from Coughlin, the employee would be responsible for giving the ringleader half of it.

[Witness 2] testified that she recalls in 2018 receiving notification from Coughlin that they had concerns about information received when looking at the list of providers and vendors that staff had gone to. She testified that during the investigation, they did not look at all staff, but flagged approximately 50 employees who demonstrated high utilization or were a concern to the Facility. [Witness 2] testified that as a result of the workplace investigation, 150 staff were ultimately terminated, some of whom have subsequently been rehired, not including the Member who remained terminated.

[Witness 2] testified that the Facility interviewed the Member as part of the workplace investigation and, although she was not present at the interview, she was briefed on all meetings and ultimately was the one who signed off on the Member’s termination (Exhibit #11). She testified that the investigators shared that during the interview the Member was very upfront, confessed to cash splitting and apologized for what she had done. She also testified that the Member did not attend the mandatory meeting with the Human Resources Department to discuss the outcome of the investigation.

The Panel was satisfied that [Witness 2] had no personal or professional interest in the outcome of the hearing and that she appeared direct and truthful in her answers. The Panel accepted the testimony of [Witness 2] as credible.

Witness #3 – [Witness 3] (“[ ]”)

[Witness 3] is a Technical Consultant and Medical Claims Auditor at Burke & Company which specializes in benefits consulting and administration and affiliated with Orion Audit Ltd, which specializes in benefit claims audits. He testified that he works alongside a team that looks at data retrieval and analysis and advised that they look at the extended health benefits including prescription drugs, dental claims and extended healthcare. He testified that in this case, he was involved in the audit and was in discussion with the Facility when they asked his team to look at the service providers the members claimed from. He testified that he was one of the individuals pulled in to look at these providers and to come back and provide details on the data found. [Witness 3] testified that he returned to the Facility with a list of providers flagged in previous audits. He testified that this then led to the Facility doing an extended health and dental benefits audit for approximately 3 years of claims.

When asked by College Counsel how certain service providers or vendors were flagged, [Witness 3] testified that they have an ongoing list of providers they have conducted investigations on previously and a list of de-listed organizations. He testified that they also look at each audit by themselves and the pattern of claims by looking to see if the claim behaviour is unusual. [Witness 3] testified that one of the most common forms of fraud is the provider submitting a claim on behalf of the member for the maximum amount and the member may not make it to all of the appointments, but still be reimbursed for these services. [Witness 3] testified that once the audit report was submitted to the Facility, it conducted its own investigation and then they met with Coughlin and the Facility to discuss next steps. He testified that there was a series of meetings to work out logistics then they began to conduct plan member interviews. College Counsel submitted into evidence, interview notes from a meeting on April 9, 2019 (Exhibit #16) that included the Member, an interviewer, [Witness 3], a notetaker and a union representative. In this interview, the Member admitted to her part in the scheme and provided the details on how she would submit the claims. [Witness 3] testified that he was present when the Member signed the written statement and that the written statement accorded with his recollection of the meeting with the Member.

The Panel was satisfied that [Witness 3] had no personal or professional interest in the outcome of the hearing and he appeared direct and truthful in his answers. [Witness 3] was able to provide the Panel with firsthand knowledge of an investigative interview with the Member. The Panel accepted the testimony of [Witness 3] as credible.

Witness #4 – [Witness 4] (“[ ]”)

[Witness 4]’s testimony was provided by way of an affidavit (Exhibit #17). [Witness 4] is the Director of Operations at Coughlin and as such has personal knowledge of the matters set out in this case. The affidavit included [Witness 4]’s sworn statement along with a list of 12 claims totalling $9,655.00 submitted by the Member to the Facility and paid out to the Member which was taken to the meeting with the Member.

Final Submissions

College Counsel reminded the Panel that there are two questions before it:

1. Did the Member submit false benefit claims as alleged?

2. If so, would those actions constitute professional misconduct?

College Counsel submitted that the burden of proof was on the College and that the standard of proof that the College had to meet was the balance of probabilities based on clear, cogent and convincing evidence.

College Counsel submitted the evidence is clear, cogent and convincing that the Member submitted false benefit claims in order to obtain a monetary benefit at the Facility’s expense. College Counsel submitted that the College was relying on two distinct categories to satisfy its burden:

1. The Member’s own admissions;

2. Circumstantial evidence that surrounds the activity.

College Counsel submitted that some of the evidence is based on the statements made by the Member to other people and that those witnesses have recounted her admission to the Panel. College Counsel submitted that panels may have to look at whether a statement is admissible. However, that was not necessary for these types of admissions made by the Member. College Counsel submitted that this was because, by their nature, they fall into circumstances whereby hearsay is admissible.

College Counsel provided the following cases to the Panel where exceptions to hearsay have been applied:

Egan v. Andrychuk (British Columbia Court of Appeal, 2022): This case refers to admissions stating, “Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis.”

CNO v. Leroux (Discipline Committee, 2014): College Counsel referred the Panel to a footnote in this decision which details the application of this principle as follows: “The panel accepted the advice of ILC that the statements were admissible under the exception to the hearsay rule that allows admissions of a party against interest.”

College Counsel submitted that in the case before this Panel, the Member made admissions and was remorseful during a meeting on April 4, 2019. The admissions were noted contemporaneously and was signed by the Member confirming that the notes were accurate and truthful to the best of her knowledge.

College Counsel submitted that the Panel heard from [Witness 3] that the statement was printed and signed by the Member to confirm its truth and accuracy. College Counsel submitted that this alone was enough to find that the Member committed the acts as alleged between 2011 to 2015 in that she submitted false claims for places she had never been to and products she never received and accepted payment for those false claims.

College Counsel submitted that [Witness 4] had been employed with Coughlin since November 2021 and was not employed during the investigations. However, he had access to all of Coughlin’s records and was in a position to run a search of those records. College Counsel submitted that although [Witness 4] did not have firsthand knowledge, he was able to validate the business evidence that was used and retained in accordance with normal business.

College Counsel submitted that from the circumstantial evidence, the Panel could also draw inferences that the Member engaged in fraudulent activity. College Counsel reminded the Panel that it was free to rely on the admissions or circumstantial evidence or both in finding that the Member had committed professional misconduct.

College Counsel provided the following cases to the Panel where drawing inferences from circumstantial evidence was common in circumstances involving fraud:

Ontario College of Pharmacists v. Kothari (OCP discipline committee, 2015): This case involved allegations that a pharmacist submitted claims for services that were not rendered. College Counsel referred the Panel to the following statement: “By way of example, the College need not adduce direct evidence of catching Mr. Kothari in the act of submitting false claims to the ODBP. Such evidence is virtually impossible to gather in the context of allegations of abuses under the ODBP scheme, which adjudicates and pays out claims in real time, and where investigations occur sometime thereafter.”

College of Physicians and Surgeons of Ontario v. Chandra (CPSO discipline committee, 2018): This case involved allegations that a physician engaged in a fraudulent billing scheme for health services. The panel reviewed a pattern of billings, particular suspicious bundling of billings and in this case accepted circumstantial evidence finding that it demonstrated a fraudulent scheme, which was supported by the direct evidence of patients and the documentary evidence.

College Counsel submitted that it is only through investigations conducted after the fact that potentially fraudulent activity is discovered. It was not uncommon to look towards the circumstantial evidence to look for the flags of fraudulent activity and that fraudulent activity had indeed taken place based on the balance of probabilities.

Toronto (City) v. Canadian Union of Public Employees, Local 79 (Arbitration, 2017): This case involved personal care workers employed by the City of Toronto alleged to have submitted fraudulent benefits claims for extended healthcare. College Counsel referred the Panel to a paragraph stating, “The evidence surrounding Ms. Dagatan’s participation in that scheme is circumstantial but is entirely consistent with the admissions regarding the operation of the scheme and the manner of participation in that scheme.” College Counsel submitted that the same approach was warranted in the case before this Panel.

ATU, Local 113 and Toronto Transit Commission (Elengikal) (Arbitration, 2020): This case involved a TTC operator submitting false health care benefits. College Counsel referred the Panel to a paragraph in this case wherein it noted that “The Grievor’s claims were strategically timed to maximise benefit payments without being detected. There were also strategic delays between when he obtained prescriptions for devices and when he filed his claims for them. This is one part of the ample evidence from which it may be concluded that it is more likely than not that there was no medical necessity for the products for which the Grievor was claiming benefits.” College Counsel submitted that the same pattern for paramedical claims was submitted by the Member in the case before this Panel.

College Counsel submitted that the College had chosen not to tender expert evidence of the breach of the Professional Standards, as it was not required in obvious cases of a breach. College Counsel submitted that this was one of those obvious cases and referred to the relevant College standards that were put into evidence (Exhibits #4, #5 and #6) which governed the Member’s conduct at the relevant time. College Counsel submitted that the Member’s actions were clearly deceitful and untruthful and constituted breaches of both the College’s Professional Standards and the Ethics Standard.

CNO v. Verde-Balayo (Discipline Committee, 2021): In this case, the allegations involved the member’s submission of false claims under the employer’s benefit plan. The panel accepted that participation in the benefits fraud constituted breach of both College’s standards and made findings of professional misconduct on all of the allegations.

Ontario College of Teachers v. Paik (OCT discipline committee, 2019): In this case a teacher submitted false insurance claims to the employer’s group benefit plan. The matter proceeded by way of an Agreed Statement of Facts and a guilty plea. College Counsel referred the Panel to paragraphs in this case that state: “Members of the teaching profession hold a unique position of trust and authority, and they are expected to serve as positive role models. Through her unethical conduct, the member demonstrated a lack of integrity that undermines the reputation of the teaching profession”. The OCT panel found that “The member’s conduct was fraudulent and an abuse of the public trust, and is completely unacceptable. Members of the teaching profession are expected to act ethically and with integrity. … Although the member’s misconduct did not directly involve students, it has undermined the public’s confidence in teachers and tarnished the reputation of the teaching profession.” College Counsel submitted that similarly nurses are leaders in the community and must be truthful, accountable and trustworthy, and the Member’s misconduct, in the case before this Panel, runs counter to these standards.

College Counsel reminded the Panel that they heard extensive evidence of the existence and extent of a benefits fraud scheme at the Facility. [Witness 2] and [Witness 3] testified to the existence of a benefits fraud scheme that was operating at the Facility. [Witness 3] testified that the claims were higher than certain other organizations and external benchmarks and that physiotherapy was especially an outlier. College Counsel submitted that the Panel heard of the extensive multi-pronged investigation which involved multiple vendors and claims. The vendors were identified through previous experience and industry knowledge and the result of high claim volumes.

College Counsel asked the Panel to make findings of professional misconduct on all the allegations set out in the Notice of Hearing.

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 Panels started their deliberations with the first question to be answered: Did the Member submit false benefit claims as alleged?

The Panel unanimously agreed that the member did submit false benefit claims as alleged as it had received evidence from [Witness 2] that during the investigation and interview of the Member evidence was provided that the Member was very upfront, confessed to cash splitting and apologized for what she had done. [Witness 3] confirmed [Witness 2]’s testimony when he testified, he was present when the Member signed the written statement (Exhibit # 16) that documented her admission to the fraud scheme and provided details on how she would submit the claim.

The Panel considered and accepted the testimony of the witnesses, the documentary evidence and the submissions from College Counsel and finds that the evidence supports the findings of professional misconduct as alleged in the Notice of Hearing.

With respect to allegation #1, although the College chose not to tender expert evidence, the Panel agreed with College Counsel’s submission that expert evidence is not required in cases of obvious breaches of the standards of practice. The College’s Professional Standards sets out a fundamental expectation that “Nurses are responsible for their actions and the consequences of those actions.” In particular, the accountability requirement states, “Each nurse is accountable to the public and responsible for ensuring that her/his practice and conduct meets legislative requirements and the standards of the profession.” The ethics requirement states, “Each nurse understands, upholds and promotes the values and beliefs described in CNO’s Ethics practice standard.” The leadership requirement states, “Each nurse demonstrates her/his leadership by providing, facilitating and promoting the best possible care/service to the public.” The College’s Ethics Standard states, “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.” The Panel finds that the Member breached the College’s Professional Standards and the Ethics Standard by deceiving the Benefit Plan provided to her by the Facility by way of accepting money through submitting false benefit claims.

With respect to allegation #2, the Panel accepted the testimony of [Witness 2] that as the Facility is responsible for 75% of the premiums, when the Facility pays out money under false pretenses, and the Member accepts that money, the Member has misappropriated property from the Facility. The Panel finds that the Member misappropriated property from the Facility when, in or around 2011 to 2015, she submitted and accepted payments for false claims under the Facility’s Benefit Plan.

With respect to allegation #3, the Panel agreed that it was by virtue of her employment at the Facility that the Member had access to the Benefit Plan and that by submitting false claim forms to the Facility’s Benefit Plan, this was by extension, a part of the Member’s practice. The Panel finds that the Member falsified a record relating to her practice.

With respect to allegation #4, the Panel received affidavit evidence detailing the individual claims made by the Member and that each of the claims were signed by the Member. The Panel is also satisfied that the Member knew these statements were false as she acknowledged she received money and admitted she had never been to the service providers listed. The Member only had access to the Facility’s Benefit Plan by virtue of her employment with it in her capacity as an RPN and as such the Panel finds that the Member signed, in her professional capacity, documents that she knew or ought to have known contained false or misleading statements.

With respect to allegation #5, the Panel finds that the Member’s conduct in submitting false claims was clearly relevant to the practice of nursing as the Member had access to the Benefit Plan through her employment at the Facility. The Member allowing service providers to repeatedly submit false benefit claims for physiotherapy services on her behalf was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in breaching the Professional Standards and the Ethics Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated repeated acts of dishonesty and deceit through misappropriating funds from the Facility’s Benefit Plan for her own personal gain. The Member also knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

Penalty

Penalty Submissions

College Counsel submitted that, in view of the Panel’s findings of professional misconduct, it should make an Order as follows:

1. Requiring Maria Jeanette T Valdez (the “Member”) to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 6 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct,

2. Professional Standards, and

3. Ethics;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into the Member’s behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

b) For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employer(s) of the decision. To comply, the Member is required to:

i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;

ii. 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;

iii. Provide the Member’s employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert or the Member’s employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The Member’s conduct consisted of serious and persistent dishonesty and deceit at the expense of the employer-funded Benefit Plan in the amount of $9,655.00;

• The Member’s conduct involved 12 claims which is not a simple lapse in judgement and involved a pattern of conduct that occurred over four years. There was time for the Member to stop, and take accountability for her actions; and

• The Member took advantage of the trust placed in her by the Facility and the Benefit Plan.

The mitigating factors in this case were:

• The Member took responsibility by admitting her actions during an investigation interview with her employer, was upfront and honest in the meeting; and

• The Member has been practicing since 1993 and has no prior discipline history with the College in the last 30 years.

College Counsel submitted that as the Member was not in attendance at the hearing and not engaged with the College’s disciplinary process, the Panel has no evidence as to whether the Member is remorseful or willing to remediate.

The proposed penalty provides for general deterrence through the 6-month suspension of the Member’s certificate of registration. Given that there have, to date, been over 80 similar cases of false benefit claims referred to the Discipline Committee, there is a strong need to send a message to the nursing profession that benefit plan misuse is not acceptable. The 6-month suspension of the Member’s certificate of registration will convey this message to the nursing membership.

The proposed penalty provides for specific deterrence through the oral reprimand and the 6-month suspension of the Member’s certificate of registration. The oral reprimand will assist the member with gaining a greater understanding of how her actions are perceived by both the nursing profession and the public. The 6-month suspension of the Member’s certificate of registration sends a message to the Member that this conduct is not acceptable. It will also deter the Member from repeating the conduct.

The proposed penalty provides for remediation and rehabilitation through the 2 meetings with a Regulatory Expert and review of the College's publications, which will assist the Member with returning to ethical nursing practice.

Overall, the public is protected through the 18 months of employer notification, which will provide a heightened level of oversight on the Member’s return to nursing 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): This case proceeded by way of a partial Agreed Statement of Facts and a partial Joint Submission on Order. The member submitted false benefit claims to her employer sponsored benefit plan in the amount of $7,982.50. The member did not make restitution. The penalty included an oral reprimand, a 4-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert and 12 months of employer notification.

CNO v. Nica (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member submitted false benefit claims to her employer sponsored benefit plan in the amount of at least $9,620.00. 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. Pavlovych (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member submitted false benefit claims to her employer sponsored benefit plan in the amount of at least $11,040.00. 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.

College Counsel submitted that one key distinguishing feature in this case is that there is no evidence of remorse, or evidence of the prospect of rehabilitation as the Member has not taken any responsibility with the College and submitted that as a result, a slightly greater penalty is appropriate in all of the circumstances.

Penalty Decision

The Panel accepts the College’s Submission on Order and accordingly orders:

1. Maria Jeannette T Valdez (the “Member”) is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 6 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):

1. Code of Conduct,

2. Professional Standards, and

3. Ethics;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into the Member’s behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

b) For a period of 18 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employer(s) of the decision. To comply, the Member is required to:

i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;

ii. 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;

iii. Provide the Member’s employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert or the Member’s employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation.

The Panel concluded that the proposed penalty is reasonable and in the public interest. Although the Member has not co-operated with the College, the Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection.

General deterrence is achieved through the 6-month suspension of the Member’s certificate of registration, which will demonstrate to the membership that there are serious consequences for engaging in this type of misconduct.

Specific deterrence is met through the oral reprimand and the 6-month suspension of the Member’s certificate of registration, which sends a signal to the Member that this type of conduct is not acceptable.

Rehabilitation and remediation are achieved through the two meetings with a Regulatory Expert and review of the College’s publications, which will allow the Member an opportunity to reflect on her actions and develop a plan to return to ethical nursing practice.

Finally, the public is protected through the 18 months of employer notification, which will enable the Member’s employer(s) to provide a heightened level of vigilance on her return to nursing practice.

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.