2. IMPLICATIONS OF THE PROPOSED BILL 140 -
LONG TERM CARE HOMES ACT RÉPERCUSSIONS DU PROJET DE LOI 140, LOI SUR LES FOYERS DE SOINS DE
LONGUE DURÉE |
That Council advise the Minister of Health and Long Term
Care of the City's position on Bill 140, the proposed Long-Term Care Homes Act,
2006 (the "Bill"), as follows:
a) That any new standards imposed by the Bill must be
accompanied by sufficient operating funds from the Province in order that
municipalities may meet the new requirements without having to redirect funds
already designated for other aspects of direct resident care;
b) That Section 67 of the Bill dealing with Council be
amended to reflect the provisions of the Public Hospitals Act regarding
accountability;
c) That the Province fulfill its 2004
commitment to provide increased funding for resident care by $6,000 per
resident per year.
Que le Conseil informe le ministre de la Santé et des Soins de longue durée de sa
position quant au projet de loi 140, la Loi sur les foyers de soins de
longue durée de 2006 proposée (le « projet de loi »), à savoir :
a) que
l'adoption de toute nouvelle norme doit être accompagnée d'un engagement de
fonds de fonctionnement suffisants pour répondre à ses exigences sans
perturbation des soins directs aux résidents;
b) que
l'article 67, portant sur la responsabilité du Conseil, doit être modifié
afin de refléter les dispositions de la Loi sur les hôpitaux publics;
et
c) que
la Province doit respecter son engagement de 2004 d'accroître le financement
des soins aux résidents de 6 000 $ par résident par année.
DOCUMENTATION
1.
City
Manager's report dated 11 January 2007 (ACS2007-CPS-LTC-0001).
2. Extract of Draft Minutes, 18 January 2007. (To be issued separately prior to the Council meeting)
Report to/Rapport au:
Community and Protective Services Committee
Comité des services communautaires
et de protection
and Council / et au Conseil
11 January 2007 / le 11 janvier 2007
Submitted
by/Soumis par : Steve Kanellakos, Deputy City Manager/Directeur municipal
adjoint,
Community and Protective
Services/Services communautaires et de protection
Contact
Person/Personne ressource : Diane Officer, Director Long Term Care
Long Term Care/Soins de longue duré
(613) 580-2424 x21426, diane.officer@ottawa.ca
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SUBJECT: |
IMPLICATIONS OF THE PROPOSED
BILL 140 - LONG TERM CARE HOMES ACT |
|
|
|
|
OBJET : |
RÉPERCUSSIONS DU
PROJET DE LOI 140, LOI SUR LES FOYERS DE SOINS
DE LONGUE DURÉE |
That Council advise the Minister of Health and Long Term Care of the
City's position on Bill 140, the proposed Long-Term Care Homes Act, 2006 (the
"Bill"), as follows:
a) That
any new standards imposed by the Bill must be accompanied by sufficient
operating funds from the Province in order that municipalities may meet the new
requirements without having to redirect funds already designated for other
aspects of direct resident care;
b) That
Section 67 of the Bill, dealing with Council accountability, be repealed or, at
minimum, that subsection 67(3) be repealed; and,
c) That
the Province fulfill its 2004 commitment to provide increased funding for
resident care by $6,000 per resident per year.
RECOMMANDATIONS DU
RAPPORT
Que le Conseil informe le ministre de la Santé et des Soins
de longue durée de sa position quant au projet de loi 140, à savoir :
a) que l'adoption de toute
nouvelle norme doit être accompagnée d'un engagement de fonds de fonctionnement
suffisants pour répondre à ses exigences sans perturbation des soins directs
aux résidents;
b) que l'article 67,
portant sur la responsabilité du Conseil, doit être supprimé ou, au minimum,
que l’article 67(3) doit être supprimé,
et
c) que la Province doit
respecter son engagement de 2004 d'accroître le financement des soins aux
résidents de 6 000 $ par résident par année.
EXECUTIVE SUMMARY
The Ministry of Health and Long Term Care (MOHLTC) has introduced Bill
140, the proposed Long-Term Care Homes Act, 2006 (the “Bill”). This legislation, if passed, will combine
the Homes for the Aged and Rest Homes Act (pertaining to municipal homes), the
Charitable Institutions Act (pertaining to charitable homes), and the Nursing
Homes Act (pertaining to for-profit and not-for-profit nursing homes) into a
single piece of legislation. The
Bill has received first and second
readings in the Legislature and public consultations are planned for
mid-January 2007 with passage expected soon after.
This report recommends that Council approve a City position on three
elements of the proposed legislation, as further described below, and that this
position, be provided to the MOHLTC for its consideration prior to passage of
the Bill.
RÉSUMÉ
Le ministre de la Santé
et des Soins de longue durée a déposé le projet de loi 140, qui regroupera en
un seul texte législatif la Loi sur les foyers pour personnes âgées et les
maisons de repos (foyers municipaux), la Loi sur les établissements de
bienfaisance (foyers de bienfaisance) et la Loi sur les maisons de soins
infirmiers (foyers de soins infirmiers à but lucratif et sans but lucratif). Le
projet de loi est passé en première et deuxième lectures au Parlement, et l'on
s'attend à ce qu'il soit adopté peu après les consultations publiques prévues à
la mi-janvier 2007.
Il est recommandé
dans le présent rapport que le Conseil définisse la position de la Ville sur
trois points du projet de loi et la soumette à l'examen du ministre avant
l'adoption du projet de loi.
Ontario municipalities own and operate 16,500
long term care beds, representing 23% of local systems and community support
services such as day centres and meals-on-wheels. Municpalities contribute an
estimated $150 million to the system.
The City of Ottawa contributes $8.7 million, this includes Real Property
and Asset Management (RPAM) costs to the four City homes (711) beds. The City’s total 2006 budget for the homes
is $44.4 million, with provincial and resident revenues at $35.7 million. The revenue distribution has the following
ratios: provincial (49.3%), resident
fees (31.1%) and municipal (19.6%).
This report recommends that Council approve a City position on three
elements of the proposed legislation, as further described below, and that this
position, consistent with the position taken by Association of Municipalities
of Ontario (AMO) and the Ontario Association of Non-Profit Homes and Services
for Seniors (OANHSS), be provided to the MOHLTC and the Ontario Legislature members
of the Standing Committee on Social Policy for their consideration prior to
passage of the Bill.
Bill 140 continues the obligation for municpalities to operate long term
care homes. If passed, municipal homes, unlike other homes, will not be granted
licenses but rather get their authority to operate through the approval of the
Minister. It is anticipated the regulations passed under this Bill will include
a list of existing municipal long term care homes at time of passage of the
Bill. The Ministry/Local Health
Integration Network (LHIN) would reserve the authority to either approve or
reject ownership changes for municipal homes.
Staff support the desired outcomes articulated in Bill 140 including a
strong, accountable, resident-centred long term care system that respects
resident dignity and comfort in a safe and caring environment. However, based on a review and analysis of
the proposed Act and consultation with other municipal and charitable providers
through the Association of Municipalities of Ontario (AMO), Ontario Association
of Non-Profit Homes and Services for Seniors (OANHSS) and the Resident and
Family Councils of our four homes, staff believe the Minister needs to consider
the following changes:
· That
any new standards be accompanied by appropriate operating funds necessary to
put services and care into place to meet the standards;
· repealing or amending
section 67 regarding operator accountability; and,
· that
the Province honour its commitment to provide an increase in funding for care
by $6,000 per resident per year.
Recommendation a) – Operating Funds for New Legislation
It is anticipated that provisions in the Bill will require additional
resources for operators to comply with enhanced requirements for compliance and
documentation respecting recruitment, orientation and training of staff,
volunteers and others providing care and services within homes, and
comprehensive accountability proceses respecting the treatment and care of
residents.
Without question homes should be accountable, however, in the absence of
additional funding, homes will have to consider taking already scarce resources
away from front-line care to meet the heavy reporting and documentation
processes of the new legislation. Bill 140 enshrines a highly regulated
approach instead of an accountability framework which would balance the
obligations aimed at protecting and supporting residents with provisions to
allow homes to have flexibility and independence in their operations and foster
and encourage creativity, innovation and community partnerships. The proposed regulations do not
differentiate between consistent high performers and the “bad apples” in the
system and places an onerous administrative burden without funding to support
the workload associated with the new reporting requirements.
Recommendation b) – Repeal or Amendment of Section 67
Bill 140 imposes personal liability on directors for failing to take all
reasonable care to ensure homes meet all the requirements of the Bill. Section 67 identifies more stringent
measures to deal with operator, board, municipal council and employer
accountability. Penalties include
significant fines (up to $25,000) or imprisonment (12 month jail term). These
new provisions may present a significant barrier to recruiting and retaining
directors, particularly volunteer directors in the not-for-profit sector. Such
sanctions far exceed those identified under the Public Hospitals Act that has
general offence provisions, but the penalty on conviction is minor ($50 and not
more than $1,000). A consistent
approach across all sectors of the health care system would be a more equitable
and reasonable requirement.
Corporate Legal Services has advised that the penalty provisions are
overly stringent and duplicate provisions of the criminal code. Any serious transgressions can and should be
pursued under the criminal code as described below:
In the preamble to the Bill it is written "The people of Ontario and
their Government: ... Recognize the responsibility to take action where
standards are not being met, or where the care, safety, security and rights of
residents might be compromised."
Section 1. Of the Bill provides as follows:
"The fundamental principle to be applied in the interpretation of
this Act and anything required of permitted under this Act is that a long-term
care home is the home of its residents and is to be operated so that it is a
place where they may live with dignity and in security, safety and
comfort."
It is submitted that section 67 should be removed from Bill 140 for the
following reasons:
1. Making
it an offence for failure by a director/officer of the corporation to take
"all reasonable care to ensure that the corporation complies with all
requirements under this Act", without providing clear guidance on what
constitutes "all reasonable care", could lead to time consuming,
prolonged and costly litigation in an effort to determine whether or not an
officer or director has taken "all reasonable care".
2. Section
135 of Bill 140 entitled "Taking control on certain grounds" provides
that "the Director may take control of, operate and manage a municipal
home or joint home if the Director believes on reasonable grounds that the home
is not being or is not likely to be operated with competence, honesty,
integrity and concern for the health, safety and well-being of its
residents." This section is
adequate to deal with a situation where the care, safety, security and rights
of residents might be compromised and permits the Director to take action where
standards are not being met as per the direction that is noted in the preamble
to the Bill. The offence imposed by section 67(3) of the Bill does not address
the responsibility to take action as per the direction in the preamble to the
Bill whereas section 135 addresses this responsibility.
3. There
are existing provisions of the Criminal Code that address the situation where a director/officer has failed to take reasonable care to ensure that the
care, safety, security and rights of residents are not compromised.
Examples of the relevant Criminal Code sections are as follows:
· s. 217 Duty of Persons Undertaking Act;
Every one who undertakes to do an act is under a legal duty to do it if an
omission to do the act is or may be dangerous to life.
· s. 217.1 Duty of Persons Directing Work; Every one who
undertakes, or has the authority, to direct how another person does work or
performs a task is under a legal duty to take reasonable steps to prevent
bodily harm to that person, or any other person, arising from that work or
task.
· s. 219 Criminal Negligence / Definition of
"duty"; (1) Every one is
criminally negligent who (a) in doing anything, or (b) in omitting to do
anything that is his duty to do, shows wanton or reckless disregard for the lives
or safety of other persons. (2) For the purposes of this section,
"duty" means a duty imposed by law.
(Note: section 67(1) The Bill imposes a duty upon a director/officer to
take all reasonable care to ensure that the corporation complies with all requirements
of the Act).
· s. 2 Definitions; "representative", in respect of an organization, means
a director, partner, employee, member, agent or
contractor of the organization.
Recommendation c) – Past Provincial Commitment to Increased Funding
While municipalities continue to be required to
establish and maintain a long term care home, and while provisions regarding
compliance, standards and enforcement are significant the provincial government
has failed to recognize the financial burden that will accompany Bill 140 by
failing to provide additional operating funding. In 2003 the Premier promised in a campaign brochure to increase
funding for care by $6,000 per resident per year during the term of his
mandate. Specifically saying “a Liberal
government would increase
funding to long term care facilities to the tune of $430 million
annually.” A $6,000 per resident per
year increase would be a base per diem funding increase of $16.44 per resident
per day. To date the province has
increased the per diem funding by $6.32, equating to only one third of the
commitment, leaving a shortfall of $10.12 per resident per day (a shortfall of
approximately $2.2 million in additional provincial funding for City
Homes). This funding gap will be
increased by the additional requirements of Bill 140.
The
province argues that it has allocated significant additional funding to the
long-term-care system and indeed it has.
Since 2004 the province has invested $610 million in the long-term care
system but only $177 million has gone to the homes for direct resident care and
services.
The proposed regulations have been reviewed by Corporate Legal Services
with comment incorporated directly into this report.
There has been consultation with other
municipal providers through the Association of Municipalities of Ontario (AMO)
and charitable and municipal providers through the Ontario Association of
Non-Profit Homes and Services for Seniors (OANHSS). Resident and Family
Councils of the four City homes and Home Advisory Committees have also been
provided with the discussion paper and their feedback forwarded to the Minister
of Health and Long Term Care.
In December 2006 the Ministry of Health and Long Term Care announced five
public consultation sessions in January 2007, two in Toronto, one each in
Kingston, London and Sudbury. Written
submissions to the Social Planning Committee of the Legislature deadline is
late January 2007.
Members of the Seniors Advisory Committee (SAC) were provided with a
draft of the staff report informally by email due to the time constraint to
obtain expedient feedback prior to the provincial consultation. The following comment was received from the
SAC Vice-Chair:
About Bill 140 Long Term Care Homes act, I support the City’s staff
report in that sufficient funds must be made available to meet any new
legislated requirements. The extra
documentation and reporting processes that will be required need administrative
financial support along with the actual “frontline” support for resident
care. As vice-chair of SAC and
sub-committee lead for Housing issues, I support the need for input into the
Minister of Health and Long-Term Care, the Hon. G. Smitherman regarding areas
of concern to city staff. It might also
be noted that Bill 140 affects about 35 other acts. City staff would be wise to ensure that those consequential
amendments do not affect other funding in those acts, etc. (Example: Community Care Access Corporations Act 2001,
etc.)
There are no financial implications with the approval of the
recommendations contained in this report.
Subject to Council approval, the City Clerk
will forward a copy of this report and it’s recommendations to the Minister of
Health and Long Term Care as well as the members of the Social Policy Standing
Committee of the Ontario Legislature with a letter outlining the City’s
concerns and recommendations for changes to the draft legislation Bill
140. The Legislature’s Standing
Committee on Social Policy is scheduled to convene on January 30th, 2007 to
undertake a clause-by-clause review of Bill 140 prior to its final
consideration by the provincial legislature.