Discipline Case Summary

The following is a summary of a matter placed before a five-member panel of the Discipline Committee of the College of Physiotherapists of Ontario on Thursday, June 1, 2006. 

In this matter, the panel considered and accepted an Agreed Statement of Facts filed by the College and Mr. Tong, and found the registrant guilty of professional misconduct and incompetence in relation to professional standards of practice and unprofessional conduct. 

The Allegations

The Discipline Panel found that the conduct alleged in the statement of agreed facts and joint submission on finding constitutes incompetence and professional misconduct as defined in paragraphs 2 (standards of practice) and 25 (unprofessional conduct) of the College's Professional Misconduct Regulation. 

Summary of Agreed Upon Facts

1. Patient Treatment Matter: 
   Mr. Tong was a duly registered physiotherapist working in Mississauga, Ontario. On or about May 29, 2003 Mr. Tong assessed a patient whose injuries were work related and covered by WSIB. Mr. Tong requested and obtained the patient’s signature on a blank health benefits claim form in the event that WSIB denied the claim. On or about June 9, 2003 Mr. Tong received confirmation from WSIB that the injuries were covered. Mr. Tong billed and was paid by WSIB for the services he provided. The patient also received treatment from a registered massage therapist that the patient assumed was a physiotherapist. The patient did tell Mr. Tong that neither her insurance nor WSIB covered massage therapy. Mr. Tong billed the massage therapy services provided by the massage therapist as physiotherapy services to both the patient’s health benefits insurer and to WSIB. Mr. Tong completed the blank health benefits claim form without the patient’s knowledge or permission. Mr. Tong made a number of incorrect statements on the form related to WSIB coverage. Mr. Tong billed both WSIB and the health benefits insurer for the same assessments and treatments. When the patient learned of the duplicate and false billing, she confronted Mr. Tong. Mr. Tong gave conflicting and false information to the patient as to his reasons for doing so. On or about June 23, 2003, the patient was injured while receiving treatment from the massage therapist. Mr. Tong did not appropriately address the issue when advised of the injury. Mr. Tong’s records were inadequate to support his billings and representations. Mr. Tong’s records were below the accepted standard of practice of the profession. When a representative from the College asked Mr. Tong about the location of his financial records in the patient’s file, Mr. Tong tried to blame the College for losing them. Mr. Tong acted in a manner inconsistent with professional standards and billing requirements. 
   
   
2. Orthotics Matter: 
   From about January 2003 to about July 2005, Mr. Tong provided a high volume of orthotics. On or about January 8, 2005, Mr. Tong told a representative of the College that he conducts a gait analysis and biomechanical assessment, for which information is filled out on a form and sent along with a prescription and the impressions of the patient’s feet to the laboratory. Mr. Tong does not provide incentives or give free shoes. The laboratory types up the analysis, makes the orthotics and sends them to Mr. Tong. Mr. Tong used the Orthotic Laboratory and. Mr. Tong conceded that he assists patients in choosing and obtaining shoes from the laboratory. In fact, Mr. Tong rarely performed a gait analysis and biomechanical assessment. Mr. Tong’s assessments were inadequate and were rarely recorded. Mr. Tong provided sufficient information to ensure that patients obtained their benefits from their extended health insurance benefit provider. Mr. Tong rarely sent gait analysis and biomechanical assessments or any other clinical information to the laboratory. Mr. Tong also used another laboratory, The Orthotics Group. Mr. Tong provided his patients with free shoes or shoes for a $10 cash payment. Mr. Tong prepared invoices for the insurers that did not clearly indicate that the price of the shoes were included with the orthotics. A significant number of orthotics patients were self referred employees of Canada Post, not referrals from physicians. 
   
   
3. Record Keeping:

Mr. Tong failed to maintain the standard of professional practice with respect to record keeping including the following components: 1) assessment; 2) treatment; 3) documentation/progress notes; 4) orthotics; 5) discharge planning; 6) legibility; and 7) billing information. 

Order on Penalty and Costs

The Discipline Committee delivered the following orders as to Penalty: 

1. The Registrar was directed to suspend the certificate of registration of Mr. Tong for a period of twelve months commencing on a date fixed by the Registrar.
2. The Registrar suspend six months of the suspension provided that Mr. Tong fulfills the remaining provisions of the Order, failing which Mr. Tong will automatically serve the remainder of the suspension.
3. Mr. Tong appear before the Panel to be reprimanded and the fact of the reprimand be recorded in the register.
4. The Registrar impose specified terms, conditions and limitations on the certificate of registration of Mr. Tong as follows:
   1. Mr. Tong shall not, directly or indirectly, dispense orthotics to patients.
   2. Mr. Tong’s practice, billings and records shall be supervised by another physiotherapist for a period of actual practice of two years from the end of the suspension.
   3. Mr. Tong shall cooperate with unannounced inspections of his practice, billings and records for a period of three years of actual practice following the end of the suspension. Mr. Tong shall reimburse the College for the costs of the inspections to a maximum of $2,000.00 for the entire inspection period.
   4. Mr. Tong shall fully cooperate with the practice assessment and enhancement that he is currently undergoing with the Quality Management Committee, including any remediation directed by the Quality Management Committee. Mr. Tong’s failure to cooperate with the quality management program can be disclosed to other committees of the College, including the Discipline Committee.
   5. Mr. Tong shall install within six months of the date of the Order, and maintain a computerized accounting system for all his billings.
   6. Mr. Tong shall not supervise any practitioners including students, physiotherapist assistants or holders of a supervised practice or provisional practice certificate of registration.
5. Mr. Tong pay to the College $30,000 towards the costs and expenses of investigating and prosecuting the matter.

The Panel’s Reasons

In assessing the proposed penalty order, the Panel considered those audiences with a vested interest in this matter – the public, the registrant and the profession. The College, which governs the self-regulating physiotherapy profession, is charged with the responsibility of protecting the public. 

The Panel concluded that Mr. Tong cooperated with the College and, by agreeing to the facts and a proposed penalty, Mr. Tong accepted responsibility for his actions. The Panel was satisfied that that the penalty reflected the severity of the allegations of incompetence and professional misconduct, and also reflected the fact that this was Mr. Tong’s second time appearing before a panel of the Discipline Committee. 

Through Mr. Tong’s agreement to not directly or indirectly dispense orthotics, participate in a stringent regime of monitoring of his practice including fully cooperating with unannounced visits and full cooperation with the practice assessment and undertaking he is currently undergoing with the Quality Management Committee, the public interest is served and Mr. Tong is provided with mechanisms for remediation and is also provided with general deterrence through a six month suspension and the restrictions applied to his future practice. 

Costs

The Discipline Committee determined that awarding of $30,000 in costs to this case was appropriate because of the serious and intentional nature of the misconduct on the part of Mr. Tong.