Frequently Asked Legal Questions from RMTs
Frequently Asked Legal Questions from RMTs
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by: Lad Kucis
Over the past twenty years, I have provided legal advice and representation to Registered Massage Therapists (RMTs) in respect of all types of CMTO proceedings (i.e. complaints, investigations, discipline, etc.) and wide assortment of health law matters.
The following are some of the most common questions I receive:
- If I Receive a Complaint, Can I Contact the Complainant to Discuss the Matter?
No. Once a complaint has been filed, an RMT is not permitted to have any communications with the complainant.
- Can I Obtain an Extension to Deliver a Response to a Complaint?
Yes. The CMTO will typically provide an extension of up to 30 days to deliver a complaint response. Please ensure, however, that you make such a request in advance, and provide a reason for the extension.
- Will Prior Complaint Decisions be Considered When Assessing a New Complaint?
Yes. Although not determinative, all prior matters with the CMTO are considered by the Inquiries, Complaints and Reports Committee (ICRC) when it reviews a new complaint. RMTs can provide a separate written submission about their prior history when they submit a response to a new complaint.
- Are the Results of Complaint Decisions Posted on the CMTO Website?
The results of complaint decisions are not posted on the CMTO website if the ICRC decides to take no further action or simply provides advice and recommendations. However, all other results are posted on the CMTO website (i.e. oral cautions, specified continuing education and remediation plans, undertakings, etc.).
- Can an RMT Request a Review of a Complaint Decision?
Yes. Both the RMT and the complainant can request a review of a complaint decision to an external tribunal called the Health Professions Appeal and Review Board (HPARB). An RMT cannot, however, request a review of a decision to refer a complaint to the Discipline Committee.
- What are the Powers of HPARB?
After conducting a review of a complaint decision, HPARB may do one or more of the following:
- confirm all or part of the decision;
- send the matter back to the ICRC with recommendations (i.e. to conduct further investigations, etc.);
- require the ICRC to impose an alternate decision;
HPARB cannot, however, order the ICRC to do things that the ICRC would not otherwise have the legal authority to do, such as make findings of professional misconduct or incompetence.
- If I am Referred to the Discipline Committee, will the Referral be Posted on the CMTO Website?
Yes. The CMTO is legally required to post all referrals to the Discipline Committee on their website, including the charges of professional misconduct. Unlike the results of complaint decisions, which only appear on your personal CMTO webpage, referrals to the Discipline Committee are posted on the main CMTO webpage (and consequently reach a broader audience).
- What Happens if I Resign During a Discipline Proceeding?
Resigning from the CMTO does not mean that a discipline matter will go away. The CMTO will proceed with the matter in your absence and the result will be posted on the CMTO website. If you are found guilty, you will also be required to pay a portion of the CMTO’s legal costs.
- Am I Required to Advise the CMTO if I am Charged with, or Found Guilty of a Criminal Offence?
Yes. RMTs are required to notify the CMTO if they have been charged with, or found guilty of an offence under the Criminal Code (irrespective of whether the conduct relates to the practice of massage therapy). A failure to do so would likely result in charges of professional misconduct.
- If I Am Found Guilty of a Criminal Offence will the CMTO Take Steps Against Me?
Yes. Any such finding would likely be considered “conduct unbecoming an RMT” as set out under the Professional Misconduct Regulation of the Massage Therapy Act, and would generally result in at minimum, an oral caution. If the conduct is serious and/or related to the practice of massage therapy, a finding of professional misconduct would almost certainly attach.
- Am I Responsible if a Clinic Operator Submits False Accounts in My Name?
Potentially. RMTs are responsible for taking sufficient steps to ensure the accuracy of accounts submitted in their name and a failure to do so can result in charges of professional misconduct or being de-listed by an insurance company. It is imperative that RMTs conduct periodic audits of accounts submitted in their name and otherwise monitor the billing practices of clinic operators.
- Do I Need to Enter a Written Agreement with a Clinic Operator?
It is highly recommended that all RMTs enter into a written agreement with the operator of any clinic where they work (either as an employee or and as an independent contractor). RMTs should ensure that such agreements discuss the protection and storage of patient health records and address what happens to such records when the RMT ceases working at the clinic. RMTs should also ensure that they obtain written confirmation that they always possess access to patient health records for all legitimate purposes (i.e. responding to a CMTO complaint or a request from an insurance company).
- Can a Non-RMT be a Health Information Custodian of a Massage Therapy patient Health Record?
Yes. It is possible that another regulated health professional or non-regulated individual or entity can be the Health Information Custodian of a massage therapy patient health record. It is imperative that the identity of the Health Information Custodian is verified in writing before commencing work at any clinic.
- How Long Do I have to Retain a patient Health Record?
RMTs are required to retain patient health records for at least 10 years from the last date of service. If the patient was under 18 at the time of the last service, the RMT must retain the health record for at least 10 years after the date the patient would have turned 18 years of age.
- Do Insurance Companies Have the Right to Obtain patient Health Records?
Under the Personal Health Information Protection Act, insurance companies are permitted access to personal health information to verify that services were in fact provided. In addition, patients typically provide insurance companies with consent to access their health records when they enter into their insurance policy and when they submit a claim. Each insurer request should be taken seriously and assessed on a case-by-case basis.
- What Happens If I am De-Listed by An Insurance Company?
If you are de-listed by an insurance company, this means that you can no longer submit claims to the insurance company in question, nor can your patients submit claims for reimbursement to that insurance company. In many de-listing cases, the insurance company will also file a complaint against the RMT with the CMTO.
- Can I Appeal a De-Listing from an Insurance Company?
It is possible to appeal a de-listing decision but it important to keep in mind that the appeal is reviewed by the same insurance company. As such, it is generally very difficult to successfully appeal a de-listing decision, unless new information is obtained.
About the Author
Lad Kucis is certified by the Law Society of Ontario as a specialist in health law and provides advice and representation to registered massage therapists in respect of all types of regulatory matters, including complaint and disciplinary matters before the CMTO, and complaint reviews before the Health Professions Appeal and Review Board.
Lad can be reached by telephone at 416.864.3114 or by email at lkucis@grllp.com.
* This article has been prepared for information purposes only and is not intended to be construed as legal advice.