Facility living differs from supportive living in that it:
· Cares for residents with medical conditions that may be serious, chronic and/or unpredictable and require access to registered nursing services on a 24-hour basis;
· Provides 24-hour registered nursing care from nursing staff who are able to respond immediately and on a sustained and unscheduled basis;
· Has health professionals that are able to respond to the need for unscheduled assessments and prescribe interventions;
· Has specialized physical design and infrastructure to address highly complex needs; and
· Is governed by the Nursing Homes Act or the Hospitals Act.
Facility living includes nursing homes and auxiliary hospitals (a hospital for the treatment of long-term or chronic illnesses, diseases or infirmities). The provincial government estimates that there are approximately 14,400 people living in approximately 200 long-term care facilities.
All long-term care facilities are subject to the provincial Long-Term Care Accommodation Standards. Similar to the Supportive Living Accommodation Standards, there are eight broad themes and detailed standards within the Long-Term Care Accommodation Standards: physical environment; coordination and referral services; hospitality services; residential services; safety services; human resources; personal services and management and administration.
All long-term care facilities receiving public funding must also follow the Continuing Care Health Service Standards.
The cost to a resident for facility living is $54.25 for a private room, $47.00 for a semi-private room and $44.50 for a standard ward room. The provincial government pays the health-associated costs.
Protection for Persons in Care Act
The Protection for Persons in Care Act applies to all adults in publicly funded care facilities, including hospitals, seniors’ lodges and nursing homes. Private supportive living operators (e.g., where the residents do not receive public funds) are not covered by the Protection for Persons in Care Act. However, all supportive living operators are required to develop and maintain policies and procedures requiring all employees to receive education on identification, prevention and reporting of abuse or suspected abuse of residents.
Pursuant to this legislation, every individual or service provider who has reasonable and probable grounds to believe that there is or has been abuse against a client shall report such abuse. A telephone hotline is available to report abuse cases.
Complaints are investigated by individuals who are not government employees but are hired under contract and are external to the agencies involved in the allegations. The investigators come from various backgrounds, such as criminology, nursing and social work, and have expertise in areas such as long-term care, mental health, law enforcement and experience working with seniors or persons with developmental disabilities.
After completing an investigation, the investigator will make recommendations to Alberta Seniors and Community Supports, which may include reviewing the facility’s funding, recommending that an employee be disciplined or dismissing the report if there is no reason to believe abuse has occurred. Alberta Seniors and Community Supports will then make a decision based on these recommendations.
The definition of abuse in the Protection for Persons in Care Act requires intent. Consequently, many reported complaints do not meet this high legislative threshold. The Legislative Review Committee studied the legislation in 2003 and recommended removing the requirement of intent. While the issue of intent is important, they noted that it “should not be the critical component in the definition of abuse” but should “instead focus on the harm or potential harm to the client, rather than the apparent state of mind of the alleged abuser.” No such changes have been initiated.
Health Facilities Review Committee
The Health Facilities Review Committee Act establishes a committee responsible for regularly reviewing and inspecting long-term care facilities and investigating complaints or concerns about care, treatment and standards of accommodation in facility living. However, “the Committee does not have the mandate to determine whether a facility is in compliance with or in contravention of standards set out in the Nursing Homes Act and Regulations, or to enforce the standards or to impose sanctions.”
The Committee is comprised of two members of the Legislative Assembly and ten private citizens. The positions are part-time and members are not employees of the provincial government.
The Committee performs surprise inspections but, in practice, they only inspect each facility approximately every three years. If a complaint involves personal health information, the Committee’s rules require permission from the complainant or their legal guardian to investigate complaints. Consequently, many complaints about facilities are never investigated, although they may be considered during the next routine review. The Committee also restricts its investigations to those made by or on behalf of a specific patient, not complaints involving more than one person.
After its investigation, the Committee sends a report to the relevant parties, as well as the Minister of Health and Wellness. The homes are asked to respond in writing within 90 days, indicating the actions undertaken to address the recommendations. The Committee will follow-up if the response is not satisfactory.
Spencer summarized the impact of the Committee’s rules on its work:
As a result of these rules, between 2003 and 2006, almost seventy percent of the private complaints made were not investigated because the forms were not returned. In 2003/4, the investigation process took over a year in each of the 6 private complaints heard. In 2004/5, only one private complaint was conducted and concluded in the year, and in 2005/6 only three complaints for long term care (out of eighteen complaints) were conducted and concluded.
The Ombudsman in Alberta has jurisdiction to investigate complaints about the patient concern resolution processes of hospitals, as well as long-term care facilities.
Regulation of Congregate Settings
Assisted Living Facilities
Assisted living facilities, or “enriched living,” are privately owned facilities where residents are independent older adults who do not require substantial care but may be in need of some services (e.g., meals, housekeeping). Residents must be cognitively capable and have the ability to make informed, voluntary decisions regarding care requirements and living arrangements (or, if living with a spouse, the spouse must be able to do so). Some enriched housing units fall under the auspices of the Housing Services Branch of the Department of Community Services. No legal right exists to inspect these facilities.
Residents of assisted living facilities enter into a rental contract or lease agreement with an operator. However, the Residential Tenancies Act is silent on the issue of jurisdiction with regard to assisted living facilities.
Residential Care Facilities, Community Based Options and Nursing Homes
Three types of long-term care facilities exist in Nova Scotia: community based options; residential care facilities; and nursing homes/homes for the aged. Both community based options and residential care facilities can fall under the jurisdiction of either the Department of Community Services or the Department of Health, while the Department of Health has exclusive jurisdiction over nursing homes. The Homes for Special Care Act and its regulations govern long-term care facilities that are licensed (i.e., residential care facilities and nursing homes).
Community based options are small homes owned and operated by private individuals or organizations for a maximum of three residents who need some supervision and limited help with personal care. Although community based options are unlicensed, they are inspected and approved by the Department of Health.
Residential care facilities are similar to community based options but they provide services to more than three residents. They are also licensed and inspected annually by the Department of Health. Operators have a duty to permit an inspector at all reasonable times to enter and inspect the residential care facility, its records and equipment, and if required, to have any resident examined by a medical practitioner or registered nurse for the purposes of the Homes for Special Care Act.
Nursing homes, sometimes known as homes for the aged, provide accommodation and skilled nursing care to older adults. Residents are referred to this level of care if they: require assistance from a registered nurse; cannot ambulate on their own; have no physical/cognitive ability to evacuate independently; or they need more than 1.5 hours of one-on-one care per day. These facilities are inspected twice a year by inspectors at the Department of Health. As with residential care facilities, operators of nursing homes have a duty to permit an inspector at all reasonable times to enter and inspect the nursing home, its records and equipment, and if required, to have any resident examined by a medical practitioner or registered nurse for the purposes of the Homes for Special Care Act.
There are approximately 5,835 licensed beds in 70 nursing homes across Nova Scotia. Statistics show that 22 nursing homes are municipally owned, 21 are private-non profit, 20 are private for-profit and 7 are based in hospitals.
The government pays the health care costs for resident care while residents are responsible for accommodation charges and personal expenses. The daily accommodation charges are $47.50 for community based options, $52.00 for residential care facilities and $86.50 for nursing homes.
A June 2008 report on the status of persons with disabilities in residential care homes found that the residential sector operates in silos. No standards other than licensing requirements are in place for residential care facilities. Inconsistencies exist across the province with respect to infrastructure maintenance, the availability of social, vocational and recreational opportunities, as well as bedroom and common area furnishings and aesthetics. The report recommended converting all unlicensed community based options to licensed homes.
Residents’ Rights in Long-Term Care Homes
The Homes for Special Care Act Regulations sets out a number of requirements for licensed long-term care homes that help to respect the social rights, freedoms and interests of residents. Generally speaking, the legislation is silent about the mechanisms available to enforce these rights.
rotection for Persons in Care Act
The Protection for Persons in Care Act applies to residents as defined by the Homes for Special Care Act and patients under the Hospitals Act. Section 4 of the Protection for Persons in Care Act places a duty on the facility operator to protect the patients or residents of the facility from abuse and to maintain a reasonable level of safety for the patients or residents. People operating within the care facilities have an obligation to report any abuse. For all other persons, reporting is voluntary.
The Minister is required to make an inquiry into any abuse report received and, depending on the circumstances, may investigate the allegations. The report is then given to the facility with a time limit in which it must comply. Any employees or residents who lodge an abuse report are protected from retaliation under the legislation.
The Nova Scotia Ombudsman has the authority to investigate complaints about hospitals, residential care facilities for seniors and nursing homes. The Ombudsman has no jurisdiction over assisted living facilities.
The Ombudsman may launch an “own motion investigation” to examine government service delivery if it receives a number of complaints about a particular department or agency. Interestingly, the Ombudsman can also initiate its own motion investigation even if no complaint has been received.
The website for the Ombudsman indicates that it utilizes “a regular visitation process” in residential care facilities and nursing homes. Representatives of the Ombudsman dedicated to seniors issues “visit the facilities, explain the role and function of the office and discuss any concerns the seniors may have.” As necessary, representatives “will assist seniors in navigating through government processes, advising them of avenues of appeal and participate on committees relating to seniors issues.” The Ombudsman hopes this “proactive approach will provide an avenue to ensure seniors’ voices are heard and their issues addressed.”
NEWFOUNDLAND AND LABRADOR
Regulation of Congregate Settings
Personal Care Homes
Personal care homes, also known as community care residences, are governed by the Health and Community Services Act and the Personal Care Home Regulations. These homes provide accommodation for five or more older adults who need minimal assistance with care or activities of daily living. Admissions to personal care homes are controlled through a single entry system by each regional board of health.
Although personal care homes are privately owned, they are licensed and highly regulated by the government. Regional boards of health issue the licenses and monitor compliance with the Long-Term Care Operational Standards. The Standards describes itself as the government’s expectations, rather than requirements, for long term care facilities.
The Department of Health and Community Services provides monies to the regional health boards to distribute to personal care home residents if they are eligible for financial assistance. The maximum subsidy is $1,500.00 per month. As of late November 2004, 59% of personal care home residents were subsidized.
The provincial Auditor General identified a number of concerns respecting basic safeguards and standards in personal care homes in a 2005 audit, stating the following: the monitoring of care standards required improvement; fire safety standards were not met; there was a failure to ascertain that policies were followed; and that it questioned whether residents were receiving a consistent and adequate level of care.
Residents of personal care homes are precluded from protection under the Residential Tenancies Act.
Nursing homes provide residential care and accommodation to residents who have high care needs and require on-site professional nursing services. Up until the recent repeal of the Hospital Act, nursing homes were identified as “scheduled hospitals.” Nursing homes are now primarily administered by regional health boards pursuant to the Regional Health Authorities Act.
The cost of living in a nursing home depends on the resident’s ability to pay. The maximum monthly amount is $2,800. If a resident is unable to pay, the government will cover the difference between the resident’s income and the cost of the nursing home, leaving $115-$125 per month for spending money.
Nursing homes are not licensed but they must be accredited through Accreditation Canada, a not-for-profit, independent organization that provides health care organizations with a “voluntary, external peer review to assess the quality of their services based on standards of excellence.” This process involves self-assessments by facility management in combination with surveyors (doctors, nurses and other health care practitioners working on behalf of Accreditation Canada) who provide feedback. The report identifies areas of excellence, as well as opportunities for improvement.
Nursing homes are also expected to abide by the Long-Term Care Operational Standards.
The same complaints procedure for personal care homes applies to nursing homes.
Residents’ Bill of Rights
Section 5 of the Long-Term Care Operational Standards is entitled “Empowering the Resident” and deals with residents’ rights and responsibilities. There are also 38 personal, legal and human rights and freedoms contained in the Performance Measures found within the Operational Standards. According to the Operational Standards, when taken together, these rights form a Residents Bill of Rights.
In the opinion of Professor Charmaine Spencer, “there is no uniform adherence to the standards set out in the Operational Manual.” She reviewed a sample of nine nursing home handbooks and discovered: one handbook referred to its listed rights as “commitments” to residents; three specifically mentioned rights; two included plain language but very truncated versions of residents’ bill of rights; and some failed to even mention a resident’s bill of rights.
Internal Complaints System
An internal complaints system is delineated within the Long-Term Care Operational Standards. Confirmation of receipt of the complaint must be provided within two business days while a post-investigation reply must be supplied within one month. The Canadian Centre for Elder Law has commented that “the complaints system is quite complex” whereby people with concerns have to report them to “a confusing myriad of authorities.”
Known as a Citizens’ Representative, this body has the power pursuant to the Citizens’ Representative Act to enter and investigate any government department or agency with the exception of the legislature or the courts. The jurisdiction of the Citizens’ Representative to investigate complaints about publicly funded long-term care homes flows from its authority over the Department of Health and Community Services and the four regional health authorities who are charged with funding, administering and maintaining these homes. Similar to Nova Scotia, the Citizens’ Representative can also instigate investigations at his or her own initiative.
Regulation of Congregate Settings
In Wales, two separate bodies regulate health and social care. The Care and Social Services Inspectorate Wales is responsible for regulating and inspecting establishments and agencies providing social care services in Wales. The Healthcare Inspectorate Wales promotes improvement in the quality and safety of patient care within the National Health Service (NHS) Wales and is the regulator of independent health care in Wales.
Typical sheltered housing schemes are comprised of 30 or 40 apartments and/or bungalows with an emergency alarm system and some communal facilities. On- site support is often provided by a “scheme manager.” Sheltered housing does not normally provide care but residents may obtain care and support from social services.
Although no one definition exists for extra care sheltered housing, a type of sheltered housing, it can be described as “housing with the full legal rights associated with being a tenant or home owner in combination with 24 hour on-site care which can be delivered flexibly according to a person’s changing needs.” Extra care housing is also known as close care, very sheltered housing, assisted living, retirement housing or easy living.
The payment for or ownership of sheltered housing includes rent, outright sale, part ownership or mixed tenure combining homes for sale and rent. Four main organizations provide sheltered housing: local councils; housing associations (non-profit organizations, the majority of which receive public money, that provide and manage homes for people who cannot afford to buy a home on the open market); the voluntary sector; and private sheltered housing developments.
Laws against harassment and illegal evictions, such as the Protection from Eviction Act 1977 and the Housing Act 1988, are applicable to tenants in all forms of sheltered housing. However, there is no formal complaints procedure for tenants renting privately and a tenant may have to go to court to enforce their rights. Residents of sheltered housing provided by local councils and most housing associations may make a complaint to the Public Service Ombudsman.
Care homes provide accommodation, together with nursing or personal care, for persons who are or have been ill, disabled, infirm, dependent on drugs or alcohol or mentally disordered. The Care Standards Act, Care Homes (Wales) Regulations 2002 and Registration of Social Care and Independent Health Care (Wales) Regulations 2002 form the foundation of the regulatory framework for care homes.
Government-run care homes have been steadily decreasing in numbers and now over 91% of private companies or the voluntary sector runs care homes in the United Kingdom and Wales.
The NHS provides for the full cost of care in a care home for residents whose primary need for being in care is health based. Otherwise, services in care homes are available to residents through a complicated scheme of means-testing – one of the most criticized aspects of health care in Wales and England. In November 2008, the Welsh assembly government launched a consultation to debate the future of adult care funding. Advocacy groups have asked the government to consider the Scottish model where people aged 65 and over living in either their own homes or care homes are entitled to receive free personal care, subject to an assessment of their needs, not their means.
The Care Standards Act empowers the Welsh assembly to set detailed minimum standards for care homes. Wales responded by creating the National Minimum Standards for Care Homes for Older People which contains 40 standards. The standards are fairly detailed and cover such matters, including: staffing levels; quality of care; and protection of legal and civic rights. These standards are used by the Care and Social Services Inspectorate Wales when determining whether care homes are “providing adequate care, meeting the needs of the persons who live there and otherwise being carried on in accordance with regulatory requirements.” However, the standards are not legally enforceable but are merely guidelines for providers, inspectors, commissioners and users to judge the quality of a service, but can be used as evidence in prosecutions for failure to comply with regulations.
Residential Property Tribunal
The Residential Property Tribunal is an independent statutory body established under the Rent Act 1965. The Tribunal’s main responsibilities are to form Rent Assessment Committees and Rent Tribunals to consider appeals about rent levels and to fix an appropriate rent where there are disputes between landlords and tenants in the private sector. The Tribunal also sets up Leasehold Valuation Tribunals to settle certain disputes between leaseholders and freeholders.
Internal Complaints Procedure for Care Homes
The Care Homes (Wales) Regulations 2002 requires care homes to prepare and follow a complaints procedure, ensure that any complaint made is fully investigated, and within 28 days from receipt of a complaint, inform the complainant of the action (if any) that is to be taken. The Welsh National Minimum Standards sets out a home’s responsibility to provide a “simple, robust and accessible complaints procedure” under which complaints are dealt with “promptly and effectively.” The service provider is expected to supply information on the internal complaints procedure to the resident, in addition to information on how to raise a complaint directly with the Care and Social Services Inspectorate for Wales and local health and social service authorities.
Care and Social Services Inspectorate for Wales
The Care and Social Services Inspectorate for Wales (CSSIW) is an operationally independent division of the Welsh Assembly Government. It ensures that social care meets the regulatory requirements and the National Minimum Standards. The CSSIW regulates more than 6,000 settings and agencies, including care homes for adults.
The CSSIW may deal with complaints that have been previously unresolved by a care home or, in certain instances, where the first stage was bypassed (e.g., the complainant is not prepared to follow the internal complaints process first or the issue appears to be serious enough to warrant police involvement). Residents funded by the local government authority or the NHS also have recourse to their complaint procedures. In such cases, the CSSIW will inform the relevant agency and agree on who is best placed to deal with the complaint. Joint investigations can also take place.
The outcome of each investigation is sent to the complainant, normally within 42 days, including reasons for any decisions made and the proposed action. Complainants are then given the opportunity to discuss the findings with the Regional Director if they are dissatisfied with the outcome. If the complainant is dissatisfied with the way in which the CSSIW conducted the investigation, they may use the Assembly Complaints procedure and utilize the Public Services Ombudsman for Wales.
The CSSIW has recourse to a range of regulatory requirements or recommendations as a result of a complaint investigation. Serious complaints may result in prosecution and/or cancellation of a care home’s registration.
Healthcare Inspectorate Wales
The Healthcare Inspectorate Wales “undertake[s] reviews and investigations into the provision of NHS funded care either by or for Welsh NHS organisations in order to provide independent assurance about and to support the continuous improvement in the quality and safety of Welsh NHS funded care.” It reviews and investigates independent health care settings (e.g., acute hospitals, mental health establishments, hospices, private medical practices and specialized clinics) as well as NHS bodies and services (e.g., NHS trusts, local health boards and National Public Health Service). The Healthcare Inspectorate Wales inspects services against the requirements of the Care Standards Act, the Private and Voluntary Healthcare Regulations and the National Minimum Standards.
Older People’s Commissioner for Wales
Wales is the only country in the world to have established a statutory, independent Older People’s Commissioner. The Commissioner for Older People (Wales) Act 2006 was passed in 2006 and the first appointed Commissioner started in April 2008.
The Commissioner is not considered to be a servant or agent of the Crown but a “watchdog charged with promotion, consultation, review, advocacy, education and investigative functions.” The Commissioner can review, and make recommendations about the adequacy and effectiveness of the law for the protection of vulnerable older people and ask the Assembly Government to consider making changes if she thinks they are needed.
The Commissioner can also examine the way public bodies discharge their functions and their effect on older people, as well as review a failure to discharge a function. Following each of these reviews, the Commissioner can publish a report containing her recommendations for change and take follow-up action to establish whether the recommendations made in that report have been acted upon.
The Commissioner can issue guidance on best practices to providers of regulated care services and review their arrangements for whistle blowing, complaints and advocacy to ensure that these are effective in safeguarding and promoting the interests of older people.
With regards to its investigative functions, the Commissioner is similar to an Ombudsman but her involvement in investigating individual cases is restricted. The Commissioner may only examine the case of an older person where she: (1) considers the representation made about an older person raises a question of principle which has a more general application or relevance to the interests of older people in Wales than in the particular case concerned; (2) she has taken into account whether the issues involved have been or are being formally considered in any way by other persons; and (3) if they have not or are not whether, in the Commissioner’s opinion, they are more suitable for consideration by other persons.
In cases where other public bodies, such as the Public Services Ombudsman, provide a more suitable forum for addressing individual complaints, but the Commissioner proceeds with an investigation, she must inform the Ombudsman, and where appropriate, they should conduct a joint investigation.
The Commissioner may also offer assistance, including of a financial nature, to individuals who are: making a complaint to the provider of a regulated service (e.g., private care homes); pursuing a complaint before the CSSIW; or taking a case to a court or tribunal in certain circumstances. She is also able to give help of a “more general kind” (e.g., providing information and referrals).
Public Services Ombudsman for Wales
The Public Services Ombudsman for Wales can provide assistance if any older person has been treated unfairly or has received poor service from a public body, including local health boards and National Health Service trusts managing a hospital or other facilities.
Regulation of Congregate Settings
Independent living units, known as retirement villages, offer supportive communities with a range of services for older people. Retirement villages are complexes containing residential premises that are predominantly or exclusively occupied by retired persons (e.g., people over the age of 55 years who have retired from full-time employment). Residents enter into village contracts with the operator of the complex. Retirement villages operate on the basis of residents caring for themselves and being self-funded.
State and territory governments regulate retirement villages. They can have different legal structures for ownership/use, such as loan/license, lease, strata, purple title and company title. Each has its own advantages and disadvantages, as well as its own applicable legislation.
In New South Wales, for example, the Retirement Villages Act 1999 and the Retirement Villages Regulation 2000 set out the rights and obligations of residents and operators. Together, for example, they explain the type of information that must be given to prospective residents; provide for the establishment of Residents Committees; and explains how and when a contract can be ended. Recent amendments to the Retirement Villages Act received assent in December 2008 but they are not yet in effect. One of the new provisions will be the creation of a 90-day settling-in period, during which time, residents may choose to terminate their resident contract.
Aged Care Facilities
The planning, funding and regulation of residential aged care facilities is the responsibility of the Commonwealth government. There are two levels of residential care. Low level care homes (previously known as hostels) generally provide accommodation, personal care and occasional nursing care. High level care homes (previously known as nursing homes) care for people with a greater degree of frailty who often need continuous nursing care.
Residential care policy in Australia is administered through the Aged Care Act 1997. The Aged Care Act sets out matters relating to the planning of services, the approval of service providers and care recipients, payment of subsidies and responsibilities of service providers. According to Sue Field, the inaugural Public Trustee New South Wales Fellow in Elder Law at the University of Western Sydney: “The Act is a voluminous tome comprising parts, divisions, chapters, sections, schedules and, in place of regulations, there are 22 sets of Principles, which also incorporate the standards to be met by approved providers of aged care.” The Principles “not only address each aspect of the provision of care that is to be received by the resident but also set out the requirements to be met by the approved provider in areas such as approval, charges to the resident, accreditation, certification, sanctions and advocacy (for the resident).”
One of the Principles is the User Rights Principles 1997 which outlines the responsibilities of an approved provider to users and proposed users of the provider’s services (e.g., security of tenure, complaint resolution).
Contained within the User Rights Principles is the Charter of Residents’ Rights and Responsibilities. It covers issues of dignity and respect, individual choice, personal privacy, freedom of speech, culture and religion, safety and security, quality care and independence. The Charter also outlines the responsibilities of residents to: care for their own health and well-being as much as possible; provide adequate information about their medical history and current health; respect the rights and needs of other residents; and respect the rights of staff to work in a harassment-free environment.
The Aged Care Act establishes a national quality assurance framework for residential aged care. It is comprised of three parts: accreditation; monitoring of approved providers for compliance with the accreditation standards and other specific responsibilities to protect resident safety; and a complaints investigation scheme and support for users’ rights.
To be eligible for continued government funding, aged care providers are assessed against a list of standards established by the Aged Care Standards and Accreditation Agency, an independent body appointed by the Department of Health and Ageing. The Agency also monitors facilities through surprise visits, responds to complaints and imposes sanctions if the standards are not met. The accreditation process is voluntary, the incentive being that aged care homes have to be accredited to receive federal funding.
Prior to the 1997 accreditation scheme, Australia had a system of legally enforceable outcome standards. Commentators contend that services for the aged have been privatized under the new regime at the expense of the interests of the residents. For instance, accreditation now places greater demands on staffing, resulting in low staff levels, which directly affects quality of care. They also point out that the Aged Care Act system was devised in response to the effective lobbying by the service provider industry who found the older system to be adversarial and intrusive.
Consumer, Trader and Tenancy Tribunal
Each state has an administrative tribunal which adjudicates cases involving retirement villages. We will examine New South Wale’s tribunal as a standard example. The Consumer, Trader and Tenancy Tribunal is an independent decision-making body which hears and decides applications for orders from both residents and village operators. The Tribunal has a Retirement Villages Division that specializes in retirement village matters. There is an application fee of $32 although pensioners receiving other Government benefits, or Seniors Card holders, only pay $5.
Tribunal orders to settle a dispute can include:
· Compliance with the retirement village laws, the terms of a village contract, or a village rule;
· Varying or setting aside a term of a village contract if it conflicts with the retirement village laws;
· The re-instatement of a reduced or withdrawn service or facility;
· The payment of compensation;
· The termination of a residence contract;
· The payment of an amount of money;
· That steps be taken to remedy a breach of any village contract or rule;
· The performance of any village contract or rule; and
· The restraint of any action in breach of any village contract or rule.
Health Care Complaints Commission
New South Wales has an independent Health Care Complaints Commission which “acts to protect public health and safety by resolving, investigating and prosecuting complaints about health care.” Complaints can be made about any health service provider in New South Wales, including registered practitioners and health service organizations (e.g., hospitals). Any person can make a complaint to the Commission, including the patient, parent or other concerned person. After making a complaint, the Commission has 60 days to assess the complaint. If the Commission finds that a health organization provided inadequate care, the Commission can make comments and/or recommendations. All recommendations are monitored.
Aged Care Complaints Investigation Scheme
Australia has both an internal and external system for the resolution of complaints about aged care services. All government subsidized aged care services are required to have an internal complaints system. However, if people are not comfortable with making an internal complaint, or the complaint cannot be resolved within the facility, they can contact the federal Aged Care Complaints Investigation Scheme.
Anybody can make a complaint about any aspect of a person’s care (e.g., food, nursing care, security, financial matters, hygiene, activities, choices, comfort and security) that may be a possible breach of the provider’s responsibilities.
The Complaints Investigation Scheme has the power to require the service provider, where appropriate, to take action within a prescribed time frame or refer issues to other appropriate resources (e.g., police, nursing and medical registration boards).
Critics claim that while the complaints scheme sounds effective on paper, it is flawed in practice. For example, the investigation process rarely substantiates the submitted complaints unless the investigator can point to a “smoking gun.” Further, while the Complaints Investigation Scheme verifies the degree to which the facility’s systems and processes are in compliance with the Aged Care Standards, it does not investigate the actual complaints. The Aged Care Commissioner has stated that half of the Complaints Investigation Scheme decisions that come to her office are flawed for failing to give reasons for rejecting complaints, poor investigative procedures and denials of natural justice.
Aged Care Commissioner
The Aged Care Commissioner, a body independent from both the Department of Health and Ageing and the Aged Care Standards and Accreditation Agency, was recently established to examine complaints made about the Aged Care Complaints Investigation Scheme. The Commissioner may also examine complaints about the conduct of the Aged Care Standards and Accreditation Agency and persons carrying out audits, or making support contacts, under the Accreditation Grant Principles 1999. Finally, the Commissioner has the power to examine particular matters on its own initiative.
Detractors of the Commissioner point to the limited powers of the Commissioner. Although the Commissioner is able to review Complaint Investigation Scheme decisions, the recommendations are not binding and can be rejected by the Department of Health and Ageing.
Aged Care Advocacy Agencies
The Aged Care Act directs the Department of Health and Ageing to fund independent advocacy services in each state or territory through the National Aged Care Advocacy Program (NACAP). The services provided are free and confidential. The independent advocacy services are community-based organisations, which give advice about the exercise of the rights of older adults. Advocacy services also work with stakeholders in the industry to encourage the development of policies and practices which protect consumers.
A NACAP Service Charter outlines the standard of advocacy service that clients can expect. Advocacy services can: provide clients with information and advice about their rights and responsibilities; support clients to be involved in decisions affecting their life; assist clients to resolve problems or complaints in relation to aged care services; and promote the rights of older people to aged care providers. The Service Charter is based on principles of autonomy and independence. It defines an “advocate” as “someone who works solely on behalf and at the direction of the client.”
According to the Charter of Residents’ Rights and Responsibilities, service providers cannot deny a resident’s right to an advocate and the provider cannot assume they can handle residents’ problems on their own.
Community Visitors Scheme
The Australian Government also funds a Community Visitors Scheme that is managed by approximately 160 approved community based organisations in each state or territory. It is available to all recipients of aged care services, not just residential aged care and provides funding for the training of volunteers who act as community visitors. The recipients are usually identified by their aged care home as at risk of isolation or loneliness, due to disability or social or cultural reasons. The scheme is deemed to have “wide acceptance in the community and the aged care sector.” In 2007-08, funding for the Community Visitors Scheme was approximately $8.85 million, with 7,500 funded visitors.
Community visitors add to the quality of life of the aged care home resident by providing friendship and companionship and minimizing the isolation that residents feel from the general community. They visit the resident matched to them at least once every two weeks and undertake to do something together, which can be as minimal as watching television together. Community visitors can be from any background and are trained and matched by a local community service organization.
UNITED STATES OF AMERICA
Regulation of Congregate Settings
Assisted Living Facilities
“The definition of ‘assisted living’ is far from clear” but it tends to be a loosely defined term which combines some aspects of both housing and care. Typically, assisted living facilities house residents cannot live independently but do not require nursing facility care. Assisted living is known by many different names, including senior housing complexes, residential care, board and care or personal care homes. It is estimated that there are between 20,000 and 36,000 assisted living facilities in the United States with approximately one million residents.
The federal government does not set any quality standards for assisted living facilities. Instead, each state enacts their own laws and licensing requirements resulting in disparity between facilities in different states. For instance, in one state, an assisted living facility may offer “around-the-clock nurse staffing with the capacity to handle a resident with significant health care needs” while an assisted living facility in another state may be a “glorified board and care home, with few services beyond meals and housekeeping.” Facility operators also have considerable discretion respecting discharges. The majority of state laws permit involuntary discharge when a facility cannot meet a resident’s needs and it is the facility who decides whether particular needs can be met. In the words of one well-known elder law lawyer, “depending on the observer’s perspective, the malleability of assisted living is either its greatest virtue or its most glaring weakness.”
The advantages of assisted living include: increased attention to residents’ individual needs; fewer restrictions for operators (which, in theory, means that there is freedom to provide better care); and residents can stay longer and age in place since the facility can accommodate a wide variety of medical conditions. The disadvantages include: relatively flimsy quality of care standards due to a regulatory assumption that service provision will be determined by contract; the care or quality of life of residents may be reduced because the facility has to accommodate a wide range of medical conditions; and prices tend to be high and subject to unpredictable increases.
Nursing homes, or nursing facilities, provide room, board, nursing services and assistance with activities of daily living.
In response to increasing scandals about poor quality of care and a high incidence of elder abuse, Congress passed the Nursing Home Reform Law as a part of the Omnibus Budget Reconciliation Act of 1987. The objective of the legislation is to ensure that nursing home residents receive quality care that will result in their achieving or maintaining the “highest practicable physical, mental and psychosocial well-being.” It applies to every nursing home that is certified to accept payment from the Medicare or Medicaid programs, or both, even if the resident is not eligible for either program and is paying privately. Further, the legislation includes a Bill of Rights which sets out the minimum requirements for the care of residents. The law also requires each state to maintain an inspection agency (which is often part of the state’s Health Department) to certify nursing homes, issue state licenses and monitor compliance. Inspectors issue deficiencies when federal law violations are found and this can result in a range of sanctions. It has been said that “the long-term care industry is one of the most heavily regulated industries in the United States.”
Enforcement of Federal Law
Compliance with federal nursing home law is generally monitored by state survey agencies. These agencies are also responsible for enforcing state law, including the issuance of state licenses, inspections and complaint investigations.
Federally-certified nursing homes must be inspected at least once every five years. The survey team is comprised of a multi-disciplinary team of professionals, including at least one registered nurse. The Centers for Medicare and Medicaid Services conduct follow-up validation surveys in at least five per cent of a state’s nursing homes to ensure the state survey agency did an adequate job. If a regular survey indicates a “substandard quality of care” (meaning that there are concerns about individual or widespread harm to residents), state survey agencies must also complete an extended survey within 14 days. Each resident’s attending physician must also be notified if an extended survey is completed.
Whenever a state or federal surveyor observes a federal law violation, the deficiency is noted and the facility must submit a detailed plan of correction. All statements of deficiencies and plans of correction must be made available to the public by the state survey agency. It has been opined that a “‘plan of correction’ is often a misnomer for what is actually a facility’s unsubstantiated promise to do better in the future.”
Allegations of an immediate and serious threat to resident safety must be investigated by a state agency within two working days, while allegations of actual harm must be investigated within 10 days.
The following remedies are available to enforce federal nursing home law: termination of the facility’s participation in Medicare and/or Medicaid; denial of payment by Medicare and/or Medicaid for new admissions; temporary management; civil money penalties; transfer of residents; closure of facility and transfer of residents; and state monitoring.
Five-Star Quality Rating System
The federal Centers for Medicare and Medicaid Services launched a rating system in late 2008 in which each nursing home in the country receives a rating from one to five stars. One star means “much below average” while five stars signifies “much above average.” The system is intended to be a tool for consumers and caregivers to compare nursing homes more easily.
The ratings are based on three sources of data: inspection reports; staffing levels; and quality measures. The Centers for Medicare and Medicaid Services concedes that each source has limitations. For instance, there are variations between states in the way inspection results are carried out. Also, both the staffing data and quality measures are self-reported by the nursing home rather than being reported by an independent agency.
The recommendation of the National Senior Citizens Law Center is for consumers to “use the new rating system with caution, and only as an aid while also pursuing other information and strategies.” The quality of a nursing home can shift from one month to the next so the rating system only represents a snapshot at one particular time.
Based on the rating system, almost half of nursing homes are “critically deficient” in the areas which are being measured.
Regulations respecting Antipsychotic Treatment
In response to the prevalence and misuse of antipsychotic therapies in nursing homes, regulations to the Omnibus Budget Reconciliation Act of 1987 were passed to improve the quality of care in nursing homes. Based on a comprehensive assessment of a resident, nursing homes must ensure the following:
1. Residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition as diagnosed and documented in the clinical record; and
2. Residents who use antipsychotic drugs receive gradual dose reductions, and behavioural interventions, unless clinically contraindicated, in an effort to discontinue these drugs.
Antipsychotic drug use declined by 30% to 36% after the implementation of these regulations but newer studies indicate prescription rates are on the rise.
Long-Term Care Ombudsman Program
Each state must establish a Long-Term Care Ombudsman Program if it wishes to receive federal funds under the Older Americans Act. Every state has done so. The purpose of the Ombudsman Program is to respond to the needs of residents facing difficulties in long-term care homes, including nursing homes and assisted living facilities. Due to limited resources in many states, assisted living facilities are left relatively under-serviced by the Ombudsman Program.
While the classic ombudsman model endorses neutrality, the Ombudsman Program was “designed for active democracy and representation of residents’ interests over those of other parties.” The Ombudsman Program has several responsibilities, such as: identifying, investigating and resolving resident complaints; protecting the legal rights of residents; advocating for systemic change; and providing information to residents and their families. Additionally, the state may designate local ombudsmen who are considered to be representatives of the Office. The Ombudsman Program relies heavily on volunteer ombudsmen. In 2006, nine out of every ten staff were volunteers. State ombudsman programs also accept monetary donations from the public.
In 2006, the Ombudsman Program investigated over 285,000 resident complaints. The largest numbers of complaints received were about: unheeded requests for assistance; problems with discharge planning or eviction notification and procedures; lack of respect for residents by staff; inadequate care plans that did not reflect residents’ conditions or did not involve families; and improper handling of residents that resulted in unexplained bruises or cuts.
The National Long Term Care Ombudsman Resource Center provides support, technical assistance and training to the 53 State Long Term Care Ombudsman Programs and their state-wide networks of almost 600 regional (local) programs. The Center is funded by the Administration on Aging but operated by the National Citizens’ Coalition for Nursing Home Reform in cooperation with the National Association of State Units on Aging.
The quality of the ombudsman programs varies greatly from state to state and even county to county. We will briefly examine the programs in Wisconsin and the District of Columbia as they are considered to be among the most successful in the country.
The Long-Term Care Ombudsman in Wisconsin provides advocacy services and outreach to persons age 60 and older who are receiving long-term care services in nursing homes, assisted living facilities, the homes of older adults and alternate settings. There are 14 Ombudsmen who serve Wisconsin’s 72 counties. Besides providing traditional services (e.g., investigating complaints, mediating issues and providing information to residents), the Ombudsman also: assist individuals with choosing a nursing home or residential facility; working with enforcement agencies; assists residents with obtaining financial assistance; and provides individual support during a care planning conference, a facility closure or other event adversely affecting one or more long-term care residence. The Ombudsman also relies heavily on Volunteer Ombudsman who makes unannounced weekly visits to an assigned nursing home. At the end of each visit, the Volunteer Ombudsman talks to the staff about their observations. The Volunteer Ombudsman program was recently expanded whereby volunteers now make visits to residential facilities as well.
The Inspector General of the United States Department of Health and Human Services ranked the Office of the District of Columbia’s Long-Term Care Ombudsman as one of the two best ombudsman programs in the nation. This office contracts its ombudsman services from a community-based senior service agency, the Emmaus Services for the Aging. Emmaus has two full-time local Ombudsmen who advocate and investigate complaints on behalf of residents in nursing homes. Both local Ombudsmen are responsible for having a cadre of trained volunteer advocates to maintain a continuous community presence in the nursing facilities in their service areas. The District of Columbia Ombudsman Program uses an aggressive style of advocacy on a more frequent basis than is characteristic of other programs.
According to Sara Hunt, a consultant to the National Long-Term Care Ombudsman Resource Center, the successful ombudsman programs have all or some of the following characteristics:
· Using the ombudsman program complaint data as the basis for identifying and pursuing systemic advocacy;
· Tenaciousness, even if it takes several years to achieve change on behalf of residents;
· Whenever possible, working with other agencies and organizations, including other advocacy organizations, to gather support and to assist with developing strategies;
· Participation in several state level work groups, task forces, and committees to achieve change and to represent the needs of residents;
· Working with the media and issuing press releases to further their advocacy. The media often use the reports issued by the Ombudsman to identify issues for further in-depth reporting;
· Interaction with elected officials at the local, state and federal level;
· A history of continuity (low turnover and longevity) in the person who is the State Ombudsman and in the advocacy direction and management philosophy of the Ombudsman Program; and
· Retain legal counsel available as needed. Wisconsin and the District of Columbia have full-time legal counsel positions working with the program. The Washington State program has legal counsel that provides necessary support via a contractual arrangement. The other programs access counsel as needed. The Oregon and Georgia State Ombudsmen are attorneys.
Eric Carlson, a leading American elder law lawyer, made the following observations about the strengths and limitations of the program:
The local Long-Term Care Ombudsman Program can be a valuable ally in a dispute with a nursing facility. Because Ombudsman Programs are designed to advocate on behalf of residents, Ombudsman Program representatives generally are more receptive than government surveyors to complaints against facilities. In addition, Ombudsman Programs often have an on-going relationship with facilities that give the Ombudsman Program leverage in coercing a facility into appropriate action.
On the other hand, Long-Term Care Ombudsman Programs have significant limitations. Unlike government survey agencies, Ombudsman Programs have no authority to assess penalties. Ombudsman Programs often are underfunded, and frequently rely on volunteer assistance. In addition, because Ombudsman Programs frequently operate within state government, they are vulnerable to political pressure.
In general, Long-Term Care Ombudsman Programs do a tremendous service for residents, but do not have nearly the resources to carry out all of their statutory duties. Too frequently, the nursing facility industry and (to a lesser extent) the federal government exaggerate the power of the Long-Term Care Ombudsman Program, in order to justify some relaxation in the substance or enforcement of nursing facility law. The Long-Term Care Ombudsman Program is a complement to – but not a replacement for – government survey agencies and private advocacy.
Mediation is a relatively new and growing dispute resolution technique which tends to be used most frequently in the context of guardianship applications. In the mid-1990s, the American Bar Association undertook a three year project respecting elder law mediation in nursing homes. The final report concluded that mediation has the “potential to give voice to residents, to improve their lives in nursing homes.”
The Older Americans Act mandates states to provide “assurances that area agencies on aging will give priority to legal assistance related to income, health care, long-term care, nutrition, housing, utilities, protective services, defense of guardianship, abuse, neglect, and age discrimination.” Services are also to be targeted at older individuals with economic or social needs. The legislation requires each state to appoint a Legal Assistance Developer who is responsible for developing and coordinating the state’s legal services and elder rights programs. This means that the specific legal services offered in each state can vary widely.
Nursing home litigation is considered to be one of the fastest-growing areas of health care litigation in the United States. It has been said that “private litigation can be a counterweight to the power held by long-term care facilities, particularly given the frequently limited efficacy of government enforcement.”
Consumer protection statutes exist in every state and are used to create a private right of action. These statutes are particularly effective in supporting claims based on unethical financial practices or deceptive advertising and agreements. However, courts in some states have held that these laws are only applicable to cases involving fraud or deception, and are unavailable for cases of negligence and malpractice. Also, because nursing-home agreements are often regulated by state law, consumer protection laws from the same state may have specific exemptions for those agreements.
Probably the most common fact pattern in nursing home litigation are injuries arising from simple falls, either from a bed or wheelchair, or transfers from one to the other. Depending on the specific circumstances of the case, fall cases may be treated either as ordinary negligence or medical malpractice. The distinction will hinge largely on what the facility has outlined as its duties, and whether that includes medical assistance, as well as, on whether the fall occurred during medical treatment or some more mundane aspect of caring for the resident. One factor that has seemed particularly relevant to the decisions in these cases has been the previous history of falls suffered by the resident, and the awareness of the facility of the risk posed by falling.
The award of damages varies considerably from state to state and from case to case. A national survey of nursing home litigators found that the average recovery for a claim is high – $406,000 – twice the normal amount in medical malpractice cases. There are several cases where the court has awarded compensatory damages as high as half a million dollars. At the same time though, other plaintiffs who have suffered similar injuries have been awarded substantially lower judgments, based on the fact that cognitive and emotional impairments may have impeded the ability of the plaintiff to understand or appreciate the injuries that were inflicted. In one case causing death, the jury awarded two million dollars, a verdict that was upheld on appeal, to compensate a son for the loss of his mother’s companionship and as compensation for the pain she must have felt before death. In Texas, a plaintiff was awarded three million dollars for physical pain and another seven million for physical impairment, even though the plaintiff’s daily routine remained largely unchanged. Punitive damages have been even higher. In Arkansas, in the case of Advocat, Inc. v. Sauer, the jury awarded $78.4 million (although it was reduced to $26.4 million on appeal) on the basis of negligence where a nursing home resident suffered dehydration and malnutrition.
Several states have enacted elder abuse statutes to encourage litigation pertaining to older adults. In California, if a defendant abuses an older adult and is guilty of recklessness, oppression, fraud or malice, the plaintiff may be entitled to enhanced remedies, including damages for pain and suffering, even after death, as well as attorney’s fees. Further, elder abuse causes of action against nursing facilities are not subject to the three year limitation period that applies to other health care malpractice actions.
Bill of Rights and Private Rights of Action
As previously noted, the federal Nursing Home Reform Law establishes a comprehensive Bill of Rights for nursing home residents. In addition to the rights afforded by the federal government, individual states may enact their own Bill of Rights to enhance the protections afforded to residents.
Some states also provide for private rights of action for residents. For example, New York permits residents of residential care facilities to seek compensatory damages in an amount sufficient to compensate a resident who has been deprived of a right or benefit with minimum damages fixed at 25% of the daily per-resident rate of payment. Residents are also entitled to seek legal fees and punitive damages where the deprivation is wilful or in reckless disregard of the lawful rights of the resident. In Florida, residents of both residential care facilities and nursing homes have private rights of action. Each statute permits the awarding of damages for actual and punitive damages, plus legal fees, if the resident’s rights have been violated by the facility. If the actions of the facility have allegedly caused the death of the resident, plaintiffs must choose between wrongful death damages or damages based on the pain and injury suffered by the resident before their death. A resident’s right of action does not prohibit a separate cause of action for negligence. In New Jersey, violation of nursing home statutes can result in special verdicts, such as treble damages (where twice or three times the amount of damages that would normally be recoverable is awarded to the plaintiff).
There are numerous similarities, nationally and internationally, respecting both the regulation of congregate settings for older adults and residents’ rights. In fact, Ontario may have a better developed system in some areas than many other jurisdictions. However, our system is not perfect and we should not be complacent.
Hospitals in Ontario have limited oversight as compared to the other jurisdictions we examined. Although complaints can be made about an individual health practitioner to their respective College, complaints cannot be made to a third party about the hospital as a whole or the care provided by the treatment team. Outside Ontario, recourse against hospitals can be sought from the Ombudsman (i.e., British Columbia, Alberta and Nova Scotia), Citizens’ Representative (Newfoundland), Health Care Inspectorate Wales or Health Care Complaints Commission (Australia). The only other jurisdiction without an independent oversight body for hospitals is the United States. Given the amount of public funding for hospitals, we find this both remarkable and troubling. Furthermore, the ability of the average citizen to complain about issues in hospitals is precluded by the dearth of independent avenues to which to complain. Even the Ministry of Health and Long-Term Care will not deal with individual complaints about care in hospitals, despite being the funder. The only option is litigation, which may be either inappropriate, or out of financial reach for most complainants.
Turning to retirement homes, we studied four jurisdictions which employ a system similar to Ontario where there is no government funding or regulation unique to retirement homes (i.e., Nova Scotia, Wales, Australia and the United States). Three provinces (i.e., British Columbia, Alberta and Newfoundland) provide monies to residents of retirement homes and/or regulate these facilities although the types of regulation do not focus on the rights of residents in those settings or seem to provide effective remedies that the residents themselves can pursue to address residents’ issues. Tenancy rights are not included in the legislation nor are there specific consumer rights protections.
Although mechanisms to provide oversight of this type of congregate living may exist in other jurisdictions, it is important to look at their limitations to determine whether it addresses residents concerns. For example, the British Columbia Registrar of Assisted Living cannot investigate complaints related to many issues of particular concern to assisted living residents including tenancy issues and assessments for eligibility for publicly subsidized assisted living. While Newfoundland has a licensed and highly regulated system, the Auditor General has identified several areas requiring improvement.
Facilities comparable to long-term care homes in jurisdictions outside Ontario also receive partial government funding and are highly regulated. Although Ontario appears to be one of the few places to have a telephone hotline to report concerns (Alberta has a hotline but only for reporting abuse), or a clearly articulated Residents’ Bill of Rights, it is lacking in oversight independent of the Ministry of Health and Long-Term Care. In contrast, if a person is dissatisfied with the way in which a complaint was handled by the Aged Care Complaints Investigation Scheme in Australia, a complaint can be made to the Aged Care Commissioner. In the Canadian provinces we studied, the Ombudsman has jurisdiction over the majority of long-term care homes.
Ontario does have independent advocacy resources, such as ACE and Concerned Friends and other non-governmental organizations, but there is no independent government agency which helps individuals navigate this complex system or examines systemic issues. The existing organizations, which can be highly effective, are limited in their scope and ability to handle complaints due to limited staffing and volunteer levels and geographic restrictions. Meanwhile, there is an Older People’s Commissioner for Wales who examines systemic (but not individual) concerns. The Australian Aged Care Commissioner has the authority to examine certain matters on its own initiative, as does two provincial Ombudsmen in Canada (i.e., Nova Scotia and Newfoundland). The Ombudsman in British Columbia and Alberta can launch systemic investigations respecting areas within its jurisdiction for which it has received complaints. Although the United States has a Long-Term Care Ombudsman Program, state ombudsmen tend to not to be an office of last resort but more comparable to an advocacy program.
One area which is lacking in Ontario is the ability of residents or their families to be awarded compensation if the resident is harmed. It would appear that when it comes to litigation for negligence and malpractice in long-term care homes, the United States is the jurisdiction which makes it most worthwhile to pursue these cases. While we do not necessarily recommend the same huge punitive damage awards in Canada, we must acknowledge the utility of a civil litigation system which recognizes the inherent value of its citizens.
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