This section of the paper will describe the different institutional settings for older adults in Ontario and how they are regulated.
Pursuant to the federal Canada Health Act, all medically necessary services delivered within hospitals must receive full public payment.
The Public Hospitals Act and its regulations provide the framework within which hospitals operate in Ontario. There are 211 hospital sites in Ontario comprised of four different types of hospitals: public hospitals; private hospitals; federal hospitals; and Cancer Care Ontario hospitals. In terms of corporate governance, there are 155 hospital corporations while the remaining 56 facilities are hospitals under an umbrella corporation. Ontario has seven private hospitals currently providing services under the Private Hospitals Act, six of which receive funding for their operations from the Ministry of Health and Long-Term Care.
Within these broad groups of hospitals, there is a further categorization into general hospitals, convalescent hospitals, hospitals for chronic patients, active treatment teaching psychiatric hospitals, active treatment hospitals for alcoholism and drug addiction and regional rehabilitation hospitals.
Complex Continuing Care
Complex continuing care refers to the provision of continuing, medically complex and specialized services in either freestanding hospitals or in designated beds within acute care hospitals. Patients typically have long-term illnesses which are unstable, or disabilities typically requiring skilled, technology-based care not available at home or in long-term care homes. However, the legislation sets no specifics as to what type of care these facilities are to offer, and most set their own admission criteria. Therefore, it is difficult to ascertain exactly what services and to whom these hospitals provide care. In the past, patients would live in these settings indefinitely; however, there is presently a greater emphasis on these settings being temporary and no longer a final destination.
A co-payment fee may be charged to a patient whose doctor has determined that the patient requires complex continuing care and is more or less a permanent resident in a hospital or other institution. The daily fee, as of July 1, 2009, is a maximum of $53.07 per day.
In 2005–2006, there were almost 24,000 patients who received complex continuing care: 17% of these patients were aged 65 to 74 while 65% were aged 75 and older.
Rehabilitation services can be provided in either a rehabilitation unit or collection of beds designated for rehabilitation purposes within a general hospital.
The Ministry of Health and Long-Term Care list 58 rehabilitation hospitals. Admission is generally from a general hospital after an acute care admission and many specialize in specific types of rehabilitation. There is no fee for rehabilitation in hospital.
As with complex continuing care, there are no set admission requirements or specifics regarding what kind of care is to be provided and to whom. It can be very difficult to access these coveted spots, and elderly patients, especially those who show signs of dementia, confusion or memory issues may be refused spaces because of difficulties in learning or following instructions.
Palliative care, or end-of-life care, is a range of services intended to provide comfort and alleviate the pain of a person who is dying. Specialized services are provided in a hospital, either in a palliative care unit or through a team of palliative professionals who will provide care wherever the patient is located in the hospital. These services are provided without charge to the patient.
Retirement homes are not part of our health care system; instead, they are tenancies and described as “care homes” under the Residential Tenancies Act, 2006:
“Care home” means a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is a primary purpose of the occupancy.
Generally, retirement homes are designed for seniors who require minimal to moderate support with their daily living activities. While retirement homes may make available some care services pursuant to a contract with the tenant, the care services provided are neither funded nor regulated by the Ministry of Health and Long-Term Care, or any other government Ministry.
Many different terms are used to describe what is defined in law as a care home in Ontario. Rest homes, retirement homes, group homes, seniors’ homes, and boarding and lodging homes may be “care homes”, provided they offer care services in addition to residential accommodation. It would appear that the care levels provided in retirement homes are also increasing due to demand and lack of available beds in long-term care homes.
Statistics indicate that there are over 700 care homes and 43,380 spaces in retirement homes in Ontario. These statistics, however, may not be accurate because there is no registration system for retirement homes and many homes, while they meet the criteria to be a retirement home, do not self-identify as a retirement home. Some care homes are small, run by an individual or a family. Outwardly, these homes may appear to be a large single family dwelling. Other care homes are very large and have an institutional appearance.
Care homes may offer any of a wide range of services including meals, nursing care, attendant care, assistance with activities of daily living, recreational and social programs, house-cleaning and laundry. Some homes require that these services must be purchased as a requirement of admission, while others will offer them to be purchased separately as needed. Landlords decide which care services will be offered, which will be mandatory, and how much they will cost, although tenants may try to negotiate these matters. The average total monthly cost (including both rent and care) is $2,750 for a standard retirement space and $3,440 for a heavy care space (1.5 hours or more of health care).
While general provincial and municipal laws apply to retirement homes, the only area of substantial regulation unique to retirement homes is the regulation of landlord-tenant matters under the Residential Tenancies Act. There is no provincial licensing or granting of approval to operate, oversight of the services provided, or provincial funding for retirement homes. There is no limit on the maximum amount of care that a home is allowed to provide, although they are prevented from calling themselves nursing homes.
Long-Term Care Homes
In Ontario, there are three kinds of long-term care homes that provide care to eligible persons: nursing homes which are regulated by the Nursing Homes Act, municipal homes for the aged which are regulated by the Homes for the Aged and Rest Homes Act, and charitable homes for the aged which are regulated by the Charitable Institutions Act. A new statute, the Long-Term Care Homes Act, 2007, will replace all three pieces of legislation once it is proclaimed into force, hopefully by the end of 2009.
There are currently 622 long-term care homes with 76,109 long-term care beds across the province. The size of long-term care homes varies, with the largest home having 472 beds while the smallest home has only 10 beds.
Each statute deals with homes with different types of ownership structures. The Nursing Homes Act governs privately-owned homes, which may be for-profit or not-for-profit. The majority of nursing homes in Ontario are operated as for-profit enterprises by corporate owners. Each municipality must operate at least one home under the Homes for the Aged and Rest Homes Act. Charities may operate homes under the Charitable Homes Act, although some are governed by the Nursing Homes Act. It should be noted, however, that some non-profit and nursing homes, while ostensibly not-for-profit, may hire a management company which earns a profit for providing services.
The government pays the cost of providing nursing, personal care and food, as well as programs and support services while the resident pays for “accommodation” only. The average daily cost for a resident living in long-term care is $142.07 per day; the provincial government pays $89 per day and residents pay an accommodation fee of $53.07 (subject to a rate reduction if they are unable to pay this amount).
Older adults entering long-term care homes tend to be at a more advanced age with increasingly complex health care needs ranging from dementia to major psychiatric conditions combined with physical illnesses. Generally, this population has a declining level of cognition and capacity, with approximately 55% of residents having a reported diagnosis of dementia. The average age of a resident in long-term care today is 83 years. That being said, there are many younger residents living in long-term care due to their medical conditions (e.g., acquired brain injury, Huntington’s disease) and a lack of alternate accommodation. Thus, long-term care homes are now serving a more diverse group of residents than ever before.
An issue which desperately needs a solution is the “difficult” or “high level of care” applicant or resident. These individuals often require high levels of complex care, due to behavioural issues stemming from dementia, psychiatric illness or other neurological issues. Psychiatric facilities will not accept these individuals, as they repeatedly state that they only provide short-term assessment and are not long-term housing facilities. In our experience, the homes that accept high level of care individuals may be the least able to care for them, but who are the only ones willing to admit them in order to fill their bed quotas. Once admitted, the individual may act out, and even harm, another resident. The resulting challenge is how to balance the rights of the each resident. At the El Roubi/Lopez (Casa Verde) inquest in 2006, several recommendations were made about the need for specialized homes and units for this population. These individuals need care that does not exist at the present time. Unfortunately, this systemic issue is outside the scope of our paper.
There are five essential features of long-term care homes. First, each home is subject to provincial legislation and inspections respecting its standards of care, physical facility, fees, management and staffing. Second, a person cannot be admitted to a long-term care home without having specific care needs, and without requiring a minimum level of care. Admission can only occur by application to the local Community Care Access Centre, who determines eligibility. Third, a long-term care home assumes responsibility for monitoring on-going care needs and identifying significant changes. Fourth, a long-term care home assumes responsibility for meeting the current and changing care needs of its residents. Fifth, the primary reason for discharging a resident from a long-term care home is that the resident no longer requires the care offered by the home or the resident requires a higher level of care that can only be provided elsewhere, and appropriate arrangements are made for alternate placement.
Long-term care homes are highly regulated by the aforementioned statutes, as well as by policies of the Ministry of Health and Long-Term Care. It is safe to say that the type of regulation can be described as “command and control.” Originally referred to as “direct regulation,” command and control regulation is typically characterized by “centralized, bureaucratic standard-setting” whereby the government prescribes particular behaviour to further its goals and establishes a regulatory agency (such as the Compliance Branch of the Ministry of Health and Long-Term Care) to monitor and ensure compliance with its standards. The major advantage of command and control regulation is dependability: the expected behaviour of long-term care homes, as well as the punishment for any breaches of the standards, is set out with clarity. Other advantages include:
Decreased information collection and evaluation costs, greater consistency and predictability of results, greater accessibility of decisions to public scrutiny and participation, increased likelihood that regulations will withstand judicial review, reduced opportunities for manipulative behaviour by agencies in response to political or bureaucratic pressures, reduced opportunities for obstructive behaviour by regulated parties…
However, due to its inflexibility, command and control regulation has several weaknesses. First, it requires regulators to have comprehensive and accurate knowledge of the industry although there is an imbalance between the knowledge levels of the government and the homes. Second, it is expensive for the state to properly enforce the rules. If the authorities cannot adequately monitor compliance, the regulatory regime will fail to control the industry and may even result in defiance or resistance. Third, command and control regulation is not immune to political manipulation. Fourth, the lack of incentives for businesses to go beyond the minimum standards or to continuously improve is a serious drawback. Finally, a multiplicity of laws, procedures and standards may arise in a command and control environment resulting in “a counterproductive regulatory overload” for both regulators and industry.
ACE’s work is based on the premise, due to the unique position of older adults in institutions, that laws enforced by government and supported by regulatory agencies – as opposed to self-regulation – is the most appropriate mechanism for achieving accountability in hospitals, retirement homes and long-term care homes. It is our position that, given the potential vulnerability of the recipients of this type of care, only government regulation can serve to ensure the continued compliance in these sectors. Our experience is that where such government regulation compliance has not been in place or where compliance has become lax, the rights of residents are not respected.
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