The Business Did It

Business structures for registrants are quickly evolving in many sectors. Accountability for registrants is sometimes disputed where only the individuals, and not the business entities themselves, are regulated.

In Spirou v College of Physiotherapists of Ontario, 2024 CanLII 9715 (ON SCDC), a physiotherapy business billed an insurer for services while systematically waiving co-payments by the patients. The claims to the insurer did not indicate that no co-payments were billed. The regulator cautioned the physiotherapists involved to ensure accuracy in the invoices submitted for their services. The physiotherapists sought judicial review of the caution, in part, because the regulator did not regulate the business that submitted the claims to the insurer. The registrants argued that the billing issue was a matter between the business and the insurer. In fact, the insurer had taken action against the business and obtained repayment of $42,388.

The Court rejected that argument noting that the registrants were owners and managers of the business. The Court said:

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 Court also accepted the regulator’s view that the inaccurate billing had public interest ramifications, quoting the following statement by the regulator:

In addition to the serious concern about accuracy of billings, the Committee decided that it would be reasonable to caution the Registrant[s] about the impact of inappropriate billings on patients and the profession. Insurers’ trust in the integrity of the profession is essential to ongoing access to benefits-covered care for patients. The de-listing of clinics (as happened temporarily with C.A.R.E. [the business]) and/or the de-listing of coverage for certain services or products, can negatively impact all physiotherapists as well as patients. In addition, insurers can punish patients for failing to notify the insurer that the co-payment was waived, potentially placing patients’ benefits at risk.

The Court also summarily dismissed, as semantics, the argument that the electronic claims submitted by the business were not “invoices”.

While this decision was made in the context of the registrants being owners and managers of the business, similar issues can arise where the registrant is only an employee or contractor for the business and does not take reasonable measures to ensure that their services are billed with integrity.

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