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Medical Professionals (RHPA) - Billing. Spirou v. College of Physiotherapists of Ontario
In Spirou v. College of Physiotherapists of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against "the decision of the Inquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario to caution four physiotherapists".
In these quotes, the court considered an insurer complaint that a physiotherapy clinic "had failed to collect co-payment amounts for a number of products and services delivered" to it's insureds, and the RHPA jurisdiction to "regulate practices or businesses" in regarding this systemic billing issue:[2] The Decisions required the Applicants to attend before a panel of the ICRC to receive a verbal caution related to the accuracy of the invoicing practice of the multidisciplinary health clinic co-owned by the Applicants.
[3] The Applicants submit that the Committee exceeded its statutory jurisdiction and that the Decisions were unreasonable. ...
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Brief Background
[8] The Applicants are co-owners and directors of the Centres for Active Rehabilitation Excellence Institute (“C.A.R.E.” or the “Clinic”). The Clinic offers physiotherapy and other multidisciplinary health services through four clinics in the Windsor-Essex area.
[9] In November 2018, the College received a copy of a complaint that Green Shield Canada (“GSC”), an insurance company, submitted to the College of Physicians and Surgeons, regarding physicians at C.A.R.E.
[10] In November 2019, following a review of the documents from GSC, the College’s Registrar appointed investigators to inquire into the conduct of the Applicants, the Clinic’s co-owners, in order to ascertain whether they may have committed an act or acts of professional misconduct regarding conflicts of interest, billing practices, consent, record keeping, and patient assessment and treatment practices.
[11] As part of its investigation, the College sought and received further information from GSC. From this further disclosure, it was discovered that C.A.R.E. had failed to collect co-payment amounts for a number of products and services delivered to GSC plan members.
[12] GSC reported that it appeared that C.A.R.E. had waived the co-payment amounts for a number of plan members, yet it had submitted invoices to GSC for the full amount of the product or service. Independent of the College’s investigation, GSC asked C.A.R.E. to pay them $42,388.96 for the uncollected co-payment amounts. The Applicants paid the amount requested by GSC.
[13] There is no dispute that C.A.R.E. had a general and systemic practice of waiving insurance co-payments for its patients. The Clinic advertised this practice in bold and large letters on its website. Further, there is no dispute that it submitted invoices to GSC for the full amount of the service without noting the waived co-payments on the claim submissions, although the Applicants submit that, technically, there were no “invoices” submitted and/or there was no ability for the Clinic to advise GSC that they waived the co-payments.
[14] At the conclusion of its investigation, ICRC released the Decisions. In the Decisions, the Committee stated that “the College does not regulate physiotherapy clinics per se and in general, the College only regulates physiotherapists themselves. Nonetheless, the College may hold registered physiotherapists accountable, where appropriate, for systemic issues in the practices of clinics or businesses in which these physiotherapists participate in the ownership or management” (emphasis added). This is the crux of the judicial review. The Applicants submit that the College does not have jurisdiction to regulate practices or businesses.
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Analysis:
A. Jurisdiction
[17] The Applicants admit that the online claims and the manual claim submissions made by the Clinic to GSC did not indicate that the Clinic intended to or was waiving any co-payment. The Applicants submit that there was no place on the forms to indicate information regarding co-payments. The ICRC found that by submitting a claim to GSC for the full amount of the product or service without indicating that any co-payment would be waived, the Clinic had misrepresented the amount it billed to the insurer because GSC paid 100 percent of the cost, as opposed to only 80 percent.
[18] Whether the Clinic financially benefited or had an obligation to GSC to collect the co-payment from the patients was irrelevant to the fact that the Clinic submitted inaccurate claims or invoices.
[19] The Committee found that the Applicants, at all times, had a professional obligation to ensure that invoices and claims submitted by the Clinic under their direction were accurate.
[20] The Applicants submit that the Committee erred in investigating and reprimanding the Applicants for matters pertaining to the management and business practices of the multidisciplinary Clinic. The ICRC lacked jurisdiction to hold registered physiotherapists accountable for systemic issues in clinics or businesses.
[21] Did the Committee have jurisdiction to consider the actions taken by the Applicants pertaining to the management and business of the Clinic?
[22] Under the Code, the objects of the College are broad and include, among other things, “[t]o regulate the practice of the profession”, “[t]o develop, establish and maintain standards of professional ethics for the members”, and “[t]o promote and enhance relations between the College and its members, other health profession colleges, key stakeholders, and the public”: see s. 3(1), paragraphs 1, 5 and 8. In light of these objects, a number of regulations have evolved.
[23] Under s. 51(1)(c) of the Code, the ICRC may find that a member has committed an act of professional misconduct if the member has committed an act of professional misconduct as defined in the regulations. Regulated professions are given deference to define misconduct within their legislative mandate.
[24] Acts of professional misconduct for physiotherapists are set out in Professional Misconduct, O. Reg. 388/028, under the Physiotherapy Act, 1991.
[25] Both parties referred to caselaw in their submissions. Of the cases on which the Applicants rely to argue that the Committee does not have jurisdiction to regulate clinics, most involved complaints against individuals with no ownership interest in the business or clinic, rather than clinic owners (see for example, Feletig v. Williams, 2023 CanLII 10518 (Ont. HPARB) and P.B. v. S.M.B., 2017 CanLII 37546 (Ont. HPARB)). These situations are quite different from the matter before this court, where the business was owned and run by physiotherapists.
[26] Under the regulations, the College can find professional misconduct when a member has failed to take reasonable steps “to ensure that any accounts submitted in the member’s name or billing number are fair and accurate”: Professional Misconduct, O. Reg. 388/028, s. 1, paragraph 33 (also see paragraphs 28 and 32). The accounts submitted in the Applicants’ names were not accurate.
[27] It would be nonsensical for the College to have jurisdiction to regulate fees and billings of individual members, but no jurisdiction to regulate fees and billings over members that operate their practice through their own business. This would allow members to easily avoid oversight by the College by running their practice though a business. The Applicants do not deny that they were the operating minds of the Clinic and that they directed and were responsible for the Clinic’s practice of waiving co-payments. The Decisions were reasonable and consistent with past decisions made by the College: see for example, Ontario (College of Physiotherapists of Ontario) v. Yardley, 2023 ONCPO 61 (CanLII).
[28] I find that the ICRC had jurisdiction to hold the Applicants accountable for systemic billing issues in their Clinic.
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