Discipline Summary

The following is a summary of a discipline case heard by a four-member panel of the Discipline Committee of the College of Physiotherapists of Ontario on October 22, 23, 24; December 1, 2, 15, 16, 1997; and April 7, 1998.

Allegations

1. PT 1 and PT 2 are registered physiotherapists who own, operate and supervise a number of rehabilitation clinics.
2. Between 1993 and the present, these clinics marketed themselves to physicians.
3. A significant marketing focus was the treatment of persons with insurance coverage for motor vehicle accidents (MVA's), since such cases were viewed as particularly lucrative by both PTs.
4. Physicians were informed by representatives of the clinic that they would be invited to submit a report for each MVA patient referral and would be able to charge $200 for the report.
5. The clinics routinely sent physicians who referred MVA patients to the clinic a form to be completed and a draft invoice from the physician to the clinic in the suggested amount of $200.
6. In general, the reports were not worth $200.
7. The form and draft invoice were not sent to physicians for non-MVA cases
8. The form and draft invoice were not sent for clinically indicated reasons.
9. The PTs knew, or ought to have known, of these circumstances.
10. The conduct alleged above constitutes professional misconduct under paragraphs 2 (standards of practice), 8 (conflict of interest), and 25 (unprofessional conduct) of section I of Ontario Regulation 861/93.

Plea

Both PTs entered a plea of not guilty to the allegations made by the College.

Hearing Summary

The allegations against the PTs of committing acts of professional misconduct and, in particular, of practising the profession while in a conflict of interest, were based on the contention that a disguised system of fee for referral (the PAR system) was in place over a period from 1993 until 1996 for clinics owned and operated by these two members. Evidence clearly indicated that the PTs were aware of the existence and use of the PAR in the case of MVA patients, and that a fee of $200 was suggested and regularly paid to physicians for submitting this report. The task of the panel was to determine whether the PAR arrangement constituted a disguised fee-for-referral system, which might be regarded as placing the members in a conflict of interest, and also to determine the particular involvement and/or knowledge of each of the defendant members with respect to the system.

The panel concluded that it is a conflict of interest for a member to pay a referring physician a fee for a report substantially in excess of the value of the report in circumstances in which it can reasonably be concluded that payment of this excessive fee may encourage the physician to refer patients to the paying clinic. Furthermore, the panel concluded that a member of the College who participates in or is a party to such a system is practising the profession while in a conflict of interest. An important question for the panel was whether the PAR in the case in question resulted in the payment of an excessive fee to referring physicians such that payment of the fee might encourage physicians to refer patients to the paying clinic.

Panel Conclusions

Design, Purpose and Intent of the PAR System: The panel concluded that the PAR system was a marketing tactic, designed principally to disguise payment of a fee that rewarded the physician for each referral. The panel found that the suggested fee of $200 was substantially in excess of the value of the report. Particularly telling, for the panel, was the fact that use of the PAR was restricted to MVA cases. The panel concluded that the use of the report system in relation to MVA cases was directly related to the fact that the $200 fee for the PAR could be passed on to insurance companies without the clinic being out-of-pocket. The panel was not convinced by the members' assertions that MVA patients were any different than others with respect to the degree of information required. If the PAR system had been designed for the reasons claimed by the defendant members, there is no compelling reason why it was not used in a much broader class of cases. The panel further concluded that a suggested fee of $200 was chosen for reasons unrelated to the value of the report or the amount of time or effort required to complete it by the physician. Rather, in the view of the panel, $200 was selected because it was the highest fee cited in the OMA Physician Guide to Third Party Billing. The panel concluded that the effort required to complete the PAR was not worth $200.

In summary, the panel found that the PAR system in place at the Rehabilitation Centre and other clinics owned, operated or supervised by the members constituted a disguised fee-for-referral scheme and that the members who participated in the system practised the profession while in a conflict of interest.

Role of the PTs with Respect to the Design and Administration of the PAR System: The panel concluded that the PT played a principal role in the design of the report system. This role extended to suggesting the amount of payment for each report and the circumstances in which it was to be used. The panel also found that the PT deliberately targeted MVA patients because the cost could be passed on to insurers. Based on the above, the panel concluded that the PT intended the PAR system to serve as a disguised fee-for-referral system, and was aware that it did so.

With respect to PT 1, the panel found that, although there was clear evidence of his involvement in the design of the report form, there was not sufficient evidence to conclude that he was involved in the development of the PAR system. While he may not have been a principal in the development of the system, it was clear to the panel that PT 1 was aware of certain key elements of the PAR system and how it operated. The panel found that PT 1 was aware of the $200 suggested fee and knew that the report was used only for MVA patients. On the basis of his knowledge of these two elements alone, the panel concluded that he must have known that the PAR constituted a disguised fee-for-referral system and that placed him in a conflict of interest. Furthermore, there was clear evidence presented at the hearing to establish that the PAR was sent out automatically for all MVA patients. While there was not sufficient evidence to establish that PT 1 knew, during the period in question, that the report was sent out automatically for all MVA patients, given his position as vice-president of clinical operations of the clinic, the panel believed he clearly ought to have known. PT 1 attempted to defend his use of the PAR by maintaining that it was clinically useful. The panel found that PT1 must have, or at least ought to have, known about concerns raised by other staff with respect to the medical and clinical value of the report.

Finding

The discipline panel found the PTs committed acts of professional misconduct, specifically practising the profession while in a conflict of interest (paragraph 8) of section I of Ontario Regulation 861/93. Having reached this conclusion, the panel found it unnecessary to rule on the question of whether the members' conduct was also in breach of paragraphs 2 and 25 of section I of Ontario Regulation 861/93.

Penalty

The following orders were made by the discipline committee:
1.
a) PT 2's certificate of registration be suspended for six months, with four months to be served, and two months to be itself suspended if PT2 pays a fine of $3,500 to the Ministry of Finance within 15 days of receiving the written reasons regarding penalty; and
b) PT2 receive a reprimand.

2.    
a) PT1's certificate of registration be suspended for a period of three months, this suspension itself to be suspended if PT1 pays a fine of $3,500 to the Ministry of Finance within 15 days of receiving the written reasons regarding penalty; and
b) PT1 receive a reprimand.

Costs

The Discipline Committee ordered:

1. PT2 to pay the College $13,000 toward the costs and expenses associated with the College's investigation of this matter; and
2. PT1 to pay the College $3,000 toward the costs and expenses associated with the College's investigation of this matter.