Bill 140: An Act respecting long-term care homes

December 2006- Bill 140 has passed third reading and is expected to be proclaimed before the House rises in the summer of 2007. The government has approved numerous amendments to this Act, many of which are intended to reduce the administrative burden on long-term care homes. The Ministry of Health and Long-term Care is in the process of writing the regulations which will accompany the Act.

These regulations contain the details that will determine how the Long-term Care Act will actually work. The proposed regulations will be posted on the government website for comments, and Concerned Friends will be watching for them. Of particular interest to us will be the regulations pertaining to Family Councils, staffing requirements, and cultural competency.

Concerned Friends believes that the Long-Term Care Act must ensure that homes have adequate and trained staff to meet the increasingly complex care needs of residents, and that the funding system must be based on the actual needs of residents, rather than an arbitrary minimum staffing standard. We are pleased that the Ontario Health Coalition's campaign advocates for a minimum average staffing standard of 3.5 hours of care per day, because a minimum average staffing standard takes into account the actual needs of residents. The minimum of 3.5 hours per day relates to homes with an average Case Mix Index (CMI) of 100.  Homes that have a higher than average Case Mix Index would require a correspondingly higher than average staffing standard.

We are pleased with the spirit of this Act. It is resident-focused, with an expanded and strengthened Residents' Bill of Rights, detailed provisions on the prevention of abuse and neglect, and limits to the use of restraints. It includes an amendment to the Coroners' Act that requires the coroner be notified of the death of every resident in a long-term care home. It will then be up to the coroner to decide whether or not the death should be investigated. This is an important safeguard.

The graduated sanctions are a welcome and necessary improvement to the enforcement system. We are especially pleased that significant financial penalties can be assessed against any one who is convicted of an offense under the Act. The protection of residents from abuse and neglect is strengthened through zero tolerance policies, mandatory reporting requirements, and whistle-blowing protection. We hope these protections, especially the whistle-blower protection, will prove to be effective, as the threat of retaliation has long been a deterrent to the reporting of incidents of neglect and abuse.

The Act helps to empower family councils and ensure that they will have an important role in the life of the long- term care home. It obligates the licensee (owner) to advise families of their right to establish a family council if one does not exist. We recommend this section also include a statement requiring the licensee to inform families of the existence of the family council program as a resource for information and support. The Act states that a family member of a resident or former resident, or a person of importance to a resident or former resident may be a family council member. It also allows a person who lives in the community where the LTC home is located to be a member of the family council. We do not see the benefit in having someone from the community, who has no connection (past or present) with any resident, as a member of the family council, and we have some concern that adding this category of membership might lead to potential difficulties for the family council. The family council would certainly be able to invite interested members of the community to attend meetings and assist in various ways, but not have the same rights as a family member or friend. The Act lists 10 powers that family councils may exercise, including the power to “attempt to resolve disputes between the licensee and residents.” We believe that this responsibility is better left to the residents' councils, and that family councils should work to resolve disputes between the licensee and families.

The Act requires that a survey of the residents and their families be taken at least annually to measure their satisfaction with the care and services. It seems to be left to each home to develop this survey. Concerned Friends would prefer that a common satisfaction survey be used province-wide, but if that is too costly, certain basic questions should be required to be a part of every home's survey. The results of the common part of survey could then be made available to the public which would allow for some meaningful comparison.

The Act specifies that a license be issued for a fixed term of not more than 25 years. Transitional licenses for shorter terms will be issued to existing homes based on the home's structural classification. B and C homes (homes that do not meet the new design standards, as do A homes) will have a license for only 10 or 12 years, respectively. We assume that this shorter term is meant as an incentive for homes to rebuild to the new design standards.

However, in the past the government has provided capital funding support for the rebuilding. Concerned Friends urges the Ministry to provide capital funding support for the necessary rebuilding, so that all residents have the opportunity to live in well-designed homes with private or semi-private rooms and easily accessible dining rooms. We would also like to see a requirement that licensees offer a ratio of at least 60% of basic accommodation to 40% preferred so that seniors with low or middle incomes can access basic accommodation more promptly.

Limits to the use of agency and temporary staff are important and will improve the consistency and overall quality of care. The requirement that staff providing direct care to residents must receive additional training in caring for people with dementia and managing aggressive behaviours is also critical to ensuring good care. Training to improve the cultural competency of staff should also be considered. We expect the regulations will spell out in more detail what the training must include, and how it will be undertaken. We also look forward to details about the qualifications that staff will be required to have. We recognize that the education standards for PSWs have improved in recent years. However, as far as we are aware, it is still not a requirement that all PSWs complete the course of study before being hired. We urge that the Ministry make it mandatory for PSWs, who provide the majority of hands-on care to residents, to complete a certified, government-approved PSW course before being hired to work in a LTC Home.

We recommend that the Act contain provisions to ensure that the medical director and the physicians providing care to residents in the home have previous experience in treating elderly people with complex care issues or have some training in geriatric principles. We do not believe that coroners should be employed as physicians in long-term care homes, as this can lead to a conflict of interest situation. The role of pharmacists in overseeing the safe use of and the interactions among medications would be a welcome addition to the Act.

The Act allows for the establishment of an Office of the LTC Home Resident and Family Advisor to assist and provide information to residents and their families, advise the minister on matters concerning the interests of residents, and perform any other functions provided for in the regulation or assigned by the minister. The duties of this office are open-ended and could possibly expand to include the powers (and costs) of an ombudsman. Concerned Friends does not favour an ombudsman specific to long-term care homes. We strongly recommend that any ombudsman's responsibilities include all aspects of elder health care in Ontario—acute care, home care, rest and retirement homes and other congregate settings—as well as long-term care homes, and that the office be independent from the Ministry of Health and Long-Term Care.

Concerned Friends regrets that this legislation does not respond to the urgent need for specialized units in designated long-term care homes to care for residents with serious behavioural problems. As recommended by the jury for the Casa Verde inquest, these units should include short-stay beds for assessment and development of appropriate care plans, longer-stay beds to allow for the implementation of the care plan, and where necessary, beds allotted for the long-term stay of residents who need to continue to be cared for in such specialized units. This is a serious omission that must be rectified.

At the same time the Ministry should carefully consider who should be living in long-term care homes. These homes are mainly populated by very frail, ill, often demented, and bedridden, residents. The safety and security of these residents should be paramount. Long-term care homes are not necessarily the best place for younger adults with mental illnesses or developmental disabilities. We are very concerned that long-term care homes not be used as “dumping grounds” simply because that is easier than providing alternate living situations more suitable to the needs of these populations.

The MOHLTC has chosen not to include a minimum standard of care (hours of nursing and personal care per resident per day) in this Act. Yet adequate staffing to meet the increasingly complex care needs of residents is fundamental to the successful implementation of many of the provisions of this Act. While a minimum standard of care is one way to ensure adequate staffing, we believe there are better methods. The Ministry is currently piloting the adoption of the long-term care assessment tool (the Minimum Data System Resident Assessment Instrument, or MDS-RAI) for assessment and care planning in homes across the province. We recommend that this process be speeded up and used as the basis of a new funding system. We need a responsive funding system that is based on the actual needs of residents, not an arbitrary minimum number of hours of care. As well, the public has a right to information about each home's staffing levels. We suggest that this information be added to the home profile on the public reporting web site.

Concerned Friends is aware that a lot of hard work and careful consideration has gone into the drafting of this very comprehensive Act. It has been a long time coming, and although we believe the Act will benefit from some adjustments, we look forward to its implementation.

Board of Directors