In a recent decision, the Ontario Superior Court of Justice held that while a regulator will only have jurisdiction over its members, the College of Physiotherapists of Ontario (the "College") can regulate the business practices of registered physiotherapists who own and manage their own clinics.
Background
In this case, four physiotherapists owned a rehabilitation clinic together (the "Registrants"). The Registrants waived the co-payment amounts (or the contribution of the insured person) for services provided to clients insured under an insurance company. However, the Registrants failed to inform the insurer of their waiver and charged the insurer for the full amounts of the services. As a result, the insurer paid 100% instead of 80% of the amounts billed. The College's Inquiries, Complaints and Reports Committee (the "Committee") decided that the Registrants would receive a verbal caution for this practice.
The Registrants sought a judicial review and argued that the Committee did not have the authority to regulate their business practices.
The Court's Decision
Physiotherapists have a professional obligation to maintain accurate billings. Accordingly, the Court held that the Committee has the authority to consider a physiotherapist's business practices and ensure they accurately bill for services provided through their clinic. In addition to an individual's business practices, the Courts held that the Committee could consider a group of members who operate a practice. In this regard, the Court stated:
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 through a business.
The Court upheld the Committee's ability to make findings against the Registrants for their business practices related to the clinic, namely their billings and failure to collect co-payments.
Furthermore, the Court found that the Committee's decision was reasonable. Even if the Committee did not respond to every submission raised by the Registrants, it responded to the main submissions and it provided factually accurate and detailed reasons.
Finally, the Court held that the Committee's decision to issue a verbal caution was reasonable. The Committee comprehensively outlined that a verbal caution was important to (i) maintain the trust between physiotherapists and insurers and (ii) protect the services covered by insurers.
The Registrants were ultimately unsuccessful in their application and were required to pay costs to the College in the amount of $10,000.
Key Takeaways
Regulators only have jurisdiction over their members and unless the business entity is a member of the regulatory body, the regulator only has jurisdiction over the individual practitioner.. However, this decision confirms that the business practices of a member of a regulated profession are fair game. In t his case, the College could regulate a physiotherapist's business practices when they operate a clinic i.e. billing practices.
According to the College's 2022-2023 Annual Report, the Committee frequently investigates issues related to "fraudulent billing, falsification of records and incomplete records." As such, physiotherapists should be cautious to ensure that they are billing accurately in their clinical practices.
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