VII. APPLYING THE FRAMEWORK: THE LAW AND ACCESS TO HOME CARE

VII. APPLYING THE FRAMEWORK: THE LAW AND ACCESS TO HOME CARE2017-03-03T18:30:48+00:00

This Chapter will illustrate the application of the Framework through consideration of a current issue in the law as it affects older adults: the law regarding access to home care supports.

The intent of this illustration is not to provide a comprehensive description of this area of the law or to propose specific reform initiatives. Rather, the aim is to reflect on this area of law in light of the anti-ageist principles and considerations that have been identified in this Interim Report, and where possible, to discover some concerns and general directions for reform that arise from the application of these principles and considerations, with the intent to provide some foundation for further research and reform initiatives.  

The law with respect to home care also raises concerns for younger persons with disabilities, and could be considered through the lens of the LCO’s sister project on the law as it affects persons with disabilities, but this Chapter will focus on the experiences of older persons. 

This area was chosen because although it is vital to the well-being of many older adults and is a recurrent topic of public discussion and policy concern, the law in this area is under-examined.  It is an area of the law that connects in a fundamental way to many of the anti-ageist principles that have been identified. It also illustrates a number of the key themes in this area of the law, including the “implementation gap”.

 

A.  Background

As is discussed in Chapter II of this Interim Report, most older adults express a strong preference to “age in place” – to remain in their homes and communities for as long as possible. Aging in place has also been identified as a policy priority for governments, partly because it provides better outcomes for older adults, and partly because it can help to support the overall sustainability of the health care system.[557] 

Because overall health may decline with age and older adults may experience various types of ability limitations, older adults may need supports of various kinds in order to age in place. This may include supports with domestic tasks, such as shopping, errand-running or cleaning, or with personal care tasks such as bathing. It may also include health-related supports, such as occupational therapy.  Most frequently such supports are provided by family and friends, whether it be spouses, children, neighbours or others. Some older adults, however, do not have family or friends who are located nearby, or have the health or ability to provide these supports. In other cases, the supports needed by the older adult may be beyond what can be provided informally. In such cases, formal home care supports are necessary.  

Home care services are, of course, closely connected to hospital care and long-term care services. Strong home care services can reduce the pressures on both hospital services and long-term care, by allowing older adults and others who use these services to return to, and/or remain in their homes with appropriate supports, rather than by accessing the higher intensity services provided through hospitals and long-term care. Conversely, resource strains in long-term care or hospital care can create challenges for the home care system as high-need individuals are unable to obtain the intensive supports they require, and are reliant on home care supports while waiting for higher levels of care. 

Policies and programs regarding formal home care supports are also closely linked to those related to informal care. Most elder care is provided in the community by family and friends. As demographic patterns change, older adults may have less access to informal supports, whether because families are spread out across the country (or around the world), because families are becoming smaller and more complex, because changes in labour force patterns have created new time pressures, or because informal caregivers are themselves aging and consequently less able to provide care. At the same time, lack of formal home care supports may create intense pressure on informal care providers. Where insufficient supports are provided, informal networks may collapse under the strain, resulting in institutionalization for the older person.[558] As the Advocacy Centre for the Elderly (ACE) has noted, 

Elder care is largely provided in the community by family members. Not only does it facilitate “aging in place” but it saves public resources. Regrettably, the services in place to support family caregivers are extremely limited resulting in an “all or nothing” system where families feel they have no choice but to put their loved one into a longterm care facility.[559]

Home care supports are of course valuable to others besides older adults. Persons who have experienced acute illness may need home care supports to assist their recovery upon discharge from hospital. Persons with disabilities who are not yet “older” may benefit from a range of personal, domestic and professional services provided in the home. 

Therefore, governments, including the government of Ontario, have invested in various types of home care supports for older adults. Ontario’s Auditor General has noted,

The Ministry has recognized the dual benefit of enhancing home care services. Having people receive care in their homes whenever possible not only means better quality of life for the patient, it is also far more cost effective than housing a patient in a hospital, long-term-care facility, or other institutional setting to receive care. One CCAC we spoke to informed us that, for instance, personal support services can enable individuals who have moderate risks/needs to continue living independently in their homes. Not having these services could lead to deterioration in a client’s condition that could result in hospitalization or institutionalization.[560] 

In Ontario, home care supports are regulated by the Home Care and Community Services Act, 1994, (HCCSA)[561] and provided through a network of Community Care Access Centres (CCACs) situated across the province.  

As changing demographics and limited resources place increasing pressures on home care services, significant concerns about access to home care have begun to surface. Lack of access to adequate home care may leave older adults in unsafe, undignified conditions, and place unbearable strains upon family care providers, as well as result in avoidable admissions to hospital or long-term care. Commentators have raised concerns about patchwork services, lack of transparency regarding the services provided, confusing eligibility criteria, and inadequate complaints and enforcement mechanisms. While there has been some significant attention to home care in recent years, very little of that attention has focused on the legal aspects of the issues.  This section examines Ontario law regarding access to home care supports through the lens of the LCO’s draft Framework.

 

B.  Ontario’s Legal Framework for Home Care
 

1.    Background

The stated purposes of the HCCSA include ensuring that “a wide range of community services is available to people in their own homes and in other community settings so that alternatives to institutional care exist”, providing “support and relief to relatives, friends, neighbours and others who provide care for a person at home”, promoting “equitable access to community services through the application of consistent eligibility criteria  and uniform rules and procedures”, and integrating community services with other types of services, including those provided by hospitals and long-term care homes.[562]

The HCCSA regulates the provision of:[563]

  1. Community support services, such as meals, transportation, caregiver support, home maintenance and recreational services;
  2. Homemaking services, such as housecleaning, laundry, shopping, banking, meal preparation and childcare;
  3. Personal support services, including assistance with or training for personal hygiene activities or routine personal activities of living; and
  4. Professional services, including nursing, occupational therapy, physiotherapy, social work, dietetics and similar services. 

The HCCSA includes a Bill of Rights for those receiving home care services. This includes rights to:[564]

  • be dealt with in a courteous and respectful manner, and to be free of any type of abuse;
  • be dealt with in a way that respects autonomy, dignity and privacy;
  • be dealt with in a way that respects individuality, and is sensitive to needs related to ethnicity, language, culture, spirituality or family;
  • receive information about the community services he or she is receiving; the laws, rules and policies affecting the operation of the service provider; and the procedures for initiating a complaint;
  • participate in the assessment of his or her needs and in the development of a plan of service;
  • give or refuse consent to the provision of any service;
  • raise concerns or recommend changes in connection with the services provided or policies and decisions that affect his or her services; and
  • have records kept confidential.

 

2.    Service Delivery Structure

The HCCSA gives the Minister of Health and Long-Term Care (MOHLTC) considerable latitude in terms of the provision of services: services may be provided directly by the government; the government may pay others to provide community services, whether through grants and contributions, or financial assistance for operating expenditures or capital expenditures; or the government may make agreements with others for the provision of services.[565] The Minister has the power to approve agencies to provide services and to approve premises for the provision of services, and may impose terms and conditions for approval.[566] 

The Community Care Access Centres (CCACs), which are approved agencies under section 5 of the HCCSA, were created in 1996, replacing regional home care and placement services that had been criticized as fragmented and inequitable.[567] Originally 42 in number, in 2006 they were consolidated into 14 organizations in order to align them with the Local Health Integration Networks (LHINs).[568] Each CCAC is now accountable to one of the LHINs and every LHIN is accountable to the Ministry.[569]  The CCACs assess potential clients for service eligibility, approve clients for home care and determine the allocation of available funds.[570] The CCACs do not themselves provide services. In theory, non-profit and for-profit organizations may compete to provide services by bidding for contracts through a Request for Proposals. In practice, the competitive process has been suspended on a number of occasions.[571] 

 

3.    Eligibility Criteria for Home Care Services

Some requirements for eligibility for services are set out in Regulation 386/99. The requirements do not set out who is eligible for services, but only who is not eligible. For example, homemaking services may not be provided unless the individual in question:

  • is insured under the Health Insurance Act,
  • is eligible for both personal support services and homemaking services,
  • either receives personal support and homemaking services from an informal caregiver who requires assistance in order to continue providing all of the required care or requires constant supervision as a result of a cognitive impairment or acquired brain injury and the person’s caregiver requires assistance with homemaking services,
  • will receive the services in a place with the necessary physical features, and
  • there is no significant risk of serious physical harm to the person providing the homemaking services, or if there is such a risk, steps can be taken to reduce it so it is no longer significant.[572]

There is relatively little caselaw interpreting the eligibility criteria under the HCCSA. In one case, however, the Appeal Board held that the criteria must be interpreted in light of the purposes of the HCCSA, including the purposes of promoting “equitable access to community services through the application of consistent eligibility criteria and uniform rules and procedures” and “the effective and efficient management of human, financial and other resources involved in the delivery of community service”.[573]

The Regulation sets out maximum amounts of services. For example, the maximum amount of combined personal support and homemaking services is 120 hours in the first 30 days of service, and 90 hours in any subsequent 30 day period. Some exceptions are provided, such as for those who are in the last stages of life, for persons who are waitlisted for long-term care or other extraordinary situations.[574] 

In practice, eligibility is determined by CCAC representatives. Since there is no legislatively required standard for assessing eligibility beyond the provisions of the Regulation setting out who is not eligible for services, the CCACs have developed a Contact Assessment Tool which constitutes a standard means of assessing client eligibility and is to be applied across all 14 CCACs.[575]

 

4.    Service Provision

When an individual applies for services, the agency must conduct an assessment of the individual’s requirements, determine eligibility and create a written plan of care for each individual receiving services. The plan of service must be regularly reviewed to adapt to changing circumstances, and the individual must have an opportunity to participate fully in the development, evaluation and review of the plan of service. The plan of service must take into account the person’s preferences, including those based on ethnic, spiritual, linguistic, familial and cultural factors.[576] 

Services outlined in the plan of service must be provided within a reasonable time frame, and if services are not immediately available, the individual must be waitlisted.[577]  

Service providers must post in their premises a copy of the Bill of Rights and of any service accountability agreement entered into.[578] As well, each agency must provide to its clients or their substitute decision-maker a written notice outlining:

  • their rights under the Bill of Rights,
  • the agency’s complaint procedures,
  • information regarding privacy and confidentiality issues, and
  • (if applicable) information about service accountability agreements entered into by the agency.[579] 

Agencies must also develop and implement plans for preventing, recognizing and addressing abuse of persons who receive services, as well as a quality management system.[580] The HCCSA sets out requirements for the protection of the privacy and confidentiality of client information.[581]

 

5.    Oversight of Agencies

The Minister may appoint program supervisors, who may conduct inspections of community service providers (with a warrant where necessary) and who have power to copy and remove records.[582] 

The Minister may revoke or suspend approvals of agencies, premises or multi-service agency designations where the Minister believes on reasonable grounds that there has been a contravention of the terms and conditions imposed by the Minister, of the Act or regulations, or breach of an agreement.[583] The Minister may also “takeover” an agency, removing and replacing some or all of the directors or directly taking control of, operating or managing the agency or some part of it.[584]

 

6.    Complaint Mechanisms and Enforcement

The “Bill of Rights” provisions of the Act are a deemed contract between the service provider and the person receiving the service, so that the service recipient could, in theory, bring an action for breach of contract in order to enforce those rights, although the practicality of this is highly questionable.[585]

Agencies approved to provide services (i.e., CCACs) are required to establish a process for receiving and reviewing complaints regarding:[586]

  1. Decisions about eligibility for services,
  2. Decisions to exclude a particular service from an individual’s plan of service,
  3. Decisions about the amount of service to be included in an individual’s plan of service,
  4. Decisions to terminate the provision of services to an individual,
  5. The quality of service provided to an individual, and
  6. Violations of the provisions of the Bill of Rights

The agency must review and respond to all complaints regarding service quality or the Bill of Rights within 60 days. For all other types of complaints, the agency must give a written notice of its decision on the complaint within 60 days. These decisions may be appealed to the Health Services Appeal and Review Board. The Appeal Board is then required to begin a hearing into the complaint within 30 days. The Appeal Board may affirm the decision, rescind it and return the matter for a fresh decision, or rescind it and substitute it own decision for that of the agency. The decisions of the Appeal Board are not appealable.[587]   

Recently, clients of home care services have also been provided with the option of contacting the Long-Term Care Action Line (LTCAL) to receive information and assistance with issues regarding the services they receive.  

 

C.  Evaluating the Legal Framework for Homecare in Ontario

The following evaluation of the HCCSA is based on the questions set out in the Draft Framework (Appendix A) of this Interim Report. As not all questions from the framework are applicable to this particular area of law, not all are addressed. The results are therefore presented in a narrative format, rather than question by question.

The evaluation is based on a review of the legislation, caselaw, government documents and relevant social science research. It has not been the subject of public consultation or original research. As noted at the opening of this Chapter, it is not intended as a fulsome review of this area of the law. Rather, it is a preliminary evaluation that points to areas of concern and issues for further examination.

As well, because this is not an area that has been subject to intensive scrutiny, there are a number of areas where information is lacking, and further research is required to make a thorough assessment of the impact of the law on older adults. Should a thorough evaluation of the HCCSA be undertaken, further research on the implementation and effects of the law would be beneficial, and consultation with service providers, older adults and the groups that represent or advocate for older adults would be necessary to provide a more thorough evaluation of how this area of the law may affect older adults.

 

1.    Who is Affected by the Law? 

The law regarding home care supports is one of general application. It does not explicitly target older adults or contain age-based criteria. However, it does disproportionately affect older adults. 

According to the Ontario Association of Community Care Access Centres (OACCAC), in the most recent fiscal year CCACs provided coordinated access to health care and support services to over 600,000 Ontarians, including:[588]

  • 200,000 patients discharged from hospital,
  • 150,000 older adults living in the community,
  • 50,000 children who needed supports to live at home and attend school, and
  • 23,000 individuals requiring end-of-life care at home. 

The website of the Ontario Home Care Association indicates that since 2006, individuals aged 65 or older have made up well over half of those receiving CCAC services. Approximately two-thirds of the services provided were personal support and homemaking services, with nursing services and occupational therapy in distant second and third places.[589] 

It therefore appears that the majority of those affected by this law are older adults, although there are also substantial numbers of persons with disabilities and individuals with acute illnesses affected. Given the type of services regulated by this law, those older adults affected will, in most cases, be those who have either acute or chronic health conditions and require supports in order to maintain their independence, dignity, security, and ability to participate and be included. That is, for older adults the law often applies at the intersection of aging and disability.  

Although no statistics were publicly available, given the demographics of aging, it is likely that the preponderance of older adults affected by these laws are older women. It is also likely that those older adults who do not have strong informal support networks – those who are socially isolated – will have greater need for, and be more dependent on the services provided through the HCCSA. Since those who are able to privately purchase home care services or home care insurance will be less affected by any shortfalls in the design or implementation of the law, the law may also disproportionately affect those older adults who are living in low-income.  

There were no statistics publicly available regarding the linguistic, ethnic, religious or other makeup of the client base for home care services.  

Indirectly, informal caregivers are also affected by this law, as the adequacy of available formal home care supports for their loved ones will significantly affect their psychological, emotional and financial well-being.  

 

2.    How Are Older Adults Affected? The Substance of the Law

General Purpose and Context

The HCCSA, and policy and practice in implementing it, are profoundly connected to the realization of the principles for older adults. For older adults who are ill, frail or living with a disability, the ability to access adequate supports, whether to maintain their health or to carry out essential life activities such as grooming and self care or basic domestic tasks, is central to their ability to maintain their physical, emotional and social security, as well as their independence and autonomy. Society’s value and respect for older adults is demonstrated by the degree to which it ensures that older adults who are frail, ill or disabled are able to maintain minimum levels of security, independence and autonomy. Certainly the self-respect of older adults may be affected if they do not have the means to maintain basic personal and domestic cleanliness, or if they are not treated appropriately in the provision of services such as bathing.[590]

The provision of adequate services in the community also affects the ability of older adults to meaningfully continue in their valued roles, whether as spouses, parents, grandparents, friends or neighbours; as volunteers or employees; or as active citizens involved in their communities.

The way in which services are provided is as important to the realization of the principles as the fact of their provision. Disrespectful or abusive services can undermine the security, dignity and independence of older adults. Services which are inflexible, impersonal or not respectful of the diversity of older adults may undermine the principle of diversity and individuality.

As was briefly noted above, a lack of adequate supports may mean that informal caregivers for older persons may face significant strains in providing sufficient care and attention to their aging loved ones, maintaining participation in the labour force and meeting all of their other obligations. That is, the security and participation of informal caregivers may also be affected by a lack of adequate appropriate supports for older adults in need.

 

Eligibility Criteria

As was noted above, the legal eligibility criteria for home care services are not age-based. They take into account functional as well as practical criteria. As they are negative criteria (in the sense that they set out who is not eligible rather than who is eligible) they leave considerable room for discretion on the part of the CCACs. The criteria used by the CCACs are not readily publicly available, and given the lack of transparency, older adults may have difficulty in planning for their future needs and in asserting their rights. Compounding this issue, in 2010 the Auditor General reported that due to varying resource availability across the CCACs, different criteria applied in different areas of the province:

Ministry policy requires CCACs to administer programs in a consistent manner to ensure fair and equitable access for all consumers no matter where they live in the province. Due to funding constraints, one of the three CCACs we visited had prioritized its services so that only those individuals assessed as high-risk or above would be eligible for personal support services, such as bathing, changing clothes, and assistance with toileting. Clients assessed as moderate risk were deemed not eligible for funded services as a necessary cost-containment measure to achieve a balanced budget. However, we noted at the other two CCACs we visited that clients assessed as moderate risk were provided with personal support services or placed on a waitlist to receive them.[591]

This raises concerns that older adults who require home care services may not consistently receive them, this then jeopardizing their security, dignity, participation and independence. As well, the difficulties that older adults face in obtaining meaningful information about their rights and options within the home care system undermine their ability to make meaningful choices, and therefore their autonomy.

 

Approach Selected for Achieving the Purposes of the Legislation

The purposes of the HCCSA, as well as the provisions of the “Bill of Rights”, are well-aligned with the principles for older adults. The purposes of the Act, for example, include the recognition of “the importance of a person’s needs and preferences, including preferences based on ethnic, spiritual, linguistic, familial and cultural factors”. The Bill of Rights explicitly recognizes the rights of older adults to be treated in a manner that “respects the person’s dignity and privacy and that promotes the person’s autonomy”, and to be dealt with “in a courteous and respectful manner and to be free from mental, physical and financial abuse by the service provider”, as well as rights to have the confidentiality of their information respected, and to raise concerns or recommend changes in connection with community services provided. There are no stereotypes or negative attitudes towards older adults embedded in the legislation. The intent of the law is to promote positive outcomes for older adults (and others) and to remove barriers by providing supports.

The legislation includes a number of mechanisms to provide older adults (and all clients) with information to make meaningful choices (and thereby to enhance autonomy), including posting requirements and obligations to provide information directly to clients or potential clients. It includes measures to prevent abuse of clients by service providers, and thus safeguard security and dignity.

The key concern with the approach selected is that it provides wide discretion to the agencies (CCACs) and to the service providers themselves in terms of eligibility criteria, levels of service provided, quality management programs, complaints processes, and provision of information, without also providing sufficiently strong mechanisms for transparency and accountability. A shortage of resources together with uneven distribution of those resources makes the problem more acute. The Auditor General has noted that the CCACs vary widely in terms of eligibility criteria, waitlist policies, level of services provided and monitoring of the quality of care provided.  For example, the Auditor General found that

The absence of standard service guidelines has resulted in each CCAC developing its own guidelines for frequency and duration of services. As a result, guidelines varied in the time allocated for each task and the frequency of service visits recommended. This means that the level of service offered may vary from one CCAC to another.[592]

Therefore, despite the laudable principles and purposes underpinning the legislation, it is difficult to determine whether or not those principles are actually being achieved, or to take remedial action if they are not.

 

Disadvantaged Older Adults

As noted above, since the law targets older adults in need of supports in order to live in security, dignity and independence, all of the older adults affected by this law are, to some degree, disadvantaged, although the degree of the disadvantage will vary depending on the level of impairment or disablement experienced, the level of informal supports available to that person, and the ability of the individual to understand the system and advocate within it. This means that extra measures are required in order to ensure that these older adults are able to fully access the benefits of the legislation and to achieve the principles.

For example, it is particularly important that the law ensure that these older adults have adequate access to clear and accessible information about their rights and responsibilities. As well, the processes for voicing concerns and enforcing rights must take into account the circumstances of older adults, including the impact of health limitations or disability, low-income, lower levels of education and literacy, and the ways in which traditional gender roles may affect resources and options for older persons. Older adults who live with these barriers will have difficulty in accessing complex, time-consuming or adversarial systems without supports, and thus will be less able to assert and protect their dignity, security, participation, autonomy and individuality.

 

3.    How Are Older Adults Affected? The Implementation of the Law

As is noted above, the HCCSA sets out strong, positive principles and identifies purposes that are in harmony with the LCO’s anti-ageist principles and potentially very beneficial for older adults. Concerns regarding home care often derive from the implementation of the law – particularly since the law provides considerable discretion to the CCACs and the service providing agencies as to how they implement the law. 

Resources

A significant aspect of the challenges faced in providing adequate and appropriate home care supports lies in the resource constraints faced by those responsible for allocating and providing services.

With changing demographics, shifting health care needs and expectations, and the fiscal effects of the recent economic downtown, the full spectrum of health care services is under pressure. The home care system faces multiple pressing priorities, particularly because acute care and long-term care are also under pressure, and has limited resources for meeting these priorities. For example, in 2008 the Ontario government announced that reduction of emergency room wait times was a top health care priority. One of the key strategies for achieving that priority was to reduce the number of patients waiting in hospital for alternate levels of care (ALC) such as long-term care. The CCACs play a key role in that strategy, including through enhanced targeted support for those in the community at highest risk of hospital admission, and the “Home First” strategy, which focuses on bringing hospital patients who require long-term care  (or other ALC) to wait at home for that care, rather than in a hospital setting.[593]

The OACCAC has identified concerns with the level and structure of funding for home care services:

In spite of this [increasing pressure on CCAC services], the 2010 Annual Report of the Auditor General of Ontario confirmed that CCACs have received a relatively small proportion (approximately $45 million) of the government’s multi‐year $1.1 billion Aging at Home Strategy. Much of the funding provided to CCACs has been one‐time funding to introduce new initiatives or address short‐term pressures. In order to sustain the results CCACs have been able to achieve, stable, predictable long‐term funding is needed that recognizes the role CCACs have played in reducing wait time pressures on other parts of the health care system, principally hospitals and long‐term care homes.[594]

In addition to funding levels, there are challenges associated with the structure of funding. The OACCAC has pointed out that predictable funding, announced in a timely manner, is essential to sustaining effective services: 

Annual budgets in CCACs range from 38$ million to 235$ million  and to ask organizations of this size and complexity to balance their considerable budgets in a single fiscal year, when funding announcements can take place as late as six months into the year, is like landing a 747 on a postage stamp. The impact can range from unnecessary reductions in service when funding reductions are anticipated to the inability to use funding increases or in-year funding targeted to serve more clients. Clients bear the impact.[595]

Research by the Institute for Clinical Evaluative Sciences indicates that there is some significant unmet need for home care supports. According to a 2010 report, the average wait time for home care services following application was seven days for short-stay clients and nine days for long-stay clients. These wait times varied considerably across the CCACs, however with wait times for long-stay clients reaching a high of almost 17 days in one region, compared to a low of 7.4 days in another. Unmet care needs were higher for those aged 75 and older (approximately six per cent reported unmet needs) as compared to those aged 65 to 75, for women as opposed to men (five per cent compared to three per cent), those living alone as opposed to those living with others (six per cent compared to four per cent) and among those in the lowest income bracket (eight per cent) as opposed to those in the highest income bracket (none).[596]

Those needing services may be waitlisted, and in some regions may not be considered eligible even to be waitlisted. Policies vary across CCAC locations with regard to whom they will place on a waiting list. While certain CCACs place all eligible clients on a waiting list, certain CCACs are unable to accommodate all clients and must be selective in which applicants they place on the list. As a result, certain CCACs are only able to place those clients assessed as high risk or higher on a waiting list. Typically, low or moderate risk clients will instead be referred to other community organizations.[597]

A recent series in the Toronto Star highlighted the stories of a number of older adults and their informal care providers struggling with inadequate services. For example, a number of older adults with dementia reported being turned away when requesting home care; a woman who cares for her husband, who suffers from Parkinson’s Disease, was refused home care after she broke her back; financially strained children were forced to beg for more hours due to a CCAC policy whereby a client’s hours are eventually cut if her situation does not deteriorate. [S.L.1] CCAC employees report feeling strained as they cannot provide all of the care that is needed with the resources they are given. They are forced to make decisions they do not want to make, as no policy choices can remedy the lack of funding under which their agency operates.[598]

That is, although the substance of the law respects and promotes anti-ageist principles, the lack of resources for adequate implementation of the law creates significant challenges for their realization.

 

Communication and Education

There is little information publicly available regarding training and education for service delivery staff. While the CCACs no doubt consider the qualifications of staff in contracting with various service providers and as part of their quality management programs, the HCCSA and regulations do not set out any minimum requirements for staff qualifications or for ongoing training and education.

In terms of information provided to the public about home care services, the main venues for information appear to be the websites of the LHINs and CCACs, and telephone information services. Not all CCACs list their telephone numbers on their home page: in some cases, recourse must be made to the Ministry of Health website. Calls to telephone services were often re-directed to the websites. That is, information is mainly available through the internet and in a print format.

A review of the home care information provided through the websites of the 14 LHINs and CCACs revealed significant variance in the extent and format of information. Some CCACs provide video presentations on their services and options, although most rely exclusively on print information. The majority of information is presented in pdf files, which may pose barriers to persons with visual disabilities who are reliant on screen readers. Some CCACs provide documents in large print formats, though many do not. Some, though not all, regions provide information in French as well as English; information in other languages is not accessible. Some CCACs provide detailed information about service providers in their region, while others do not.

 

Access and Enforcement Mechanisms

Several issues have been raised concerning the adequacy of the complaints mechanisms under the HCCSA, including the complexity of the system, lack of access to a neutral third party, lack of access to information about complaints processes, and the lack of transparency and accountability in the complaints processes.

Complexity: As was described earlier, there are different complaint options for different types of issues.

  • “Bill of Rights” issues may be the subject of a complaint to the agency, or may be treated as a breach of contract between the individual and the service provider.
  • Issues regarding service levels or eligibility must be brought to the attention of the agency. The agency must respond in writing, and decisions may be appealed to HSARB.
  • Service quality issues must be brought to the attention of the agency. The agency need not provide responses in writing, and there are no rights of appeal to HSARB.are dealt with differently than other issues: responses need not be in writing, and there is no access to an impartial outside party (HSARB).
  • For any issue, concerns may now be brought to the attention of the LTCAL.

The complaints process is therefore complex, with different alternatives for different issues, and may be confusing for an older person trying to determine his or her options and the possible outcomes. And because the HCCSA has no specific requirements regarding such complaints processes, they vary between agencies, making it harder to clients to navigate the system.

Practicability of options provided: As was noted earlier, when a client finds that a provision under the Bill of Rights has been violated, he or she may also have recourse to civil courts by initiating an action for breach of contract. Even without an explicit contract, there is an implied agreement between service providing agencies and the CCAC and clients receiving home care.[599] While in theory, recourse to civil courts grants older adults an avenue outside of the administrative system, in reality, such recourse is not accessible to most of the older adults receiving home care from CCACs. Both the limited resources of Legal Aid Ontario and the lack of lawyers practicing elder law in Ontario pose a problem for older adults who might otherwise choose to pursue their case in court. In addition, the limited financial means of many of the older adults who rely on provincially-funded home care may prevent those considering the option of pursuing lengthy and expensive court proceedings from doing so. Older adults who can afford civil litigation may decide to invest their resources in purchasing home care services out of pocket rather than to invest resources, time and energy into the uncertain process of civil litigation.[600]

Lack of recourse to a neutral third party: Complaints about quality of care or about decisions regarding eligibility or service levels can be made to the service providing agency. As such, the Act only provides a mechanism whereby older adults can complain about the services they are receiving to the providing agencies themselves. Decisions of the agencies regarding complaints about eligibility or service levels can be appealed to HSARB; however, this is not true for responses to complaints regarding quality of care, so that for these complaints there is at no stage any recourse to a true third-party. In other words, for service level and eligibility issues, the first level of recourse is to complain to those responsible for providing that care, and for those who have received poor quality care, this is the only option

Some home care recipients report not using the complaint mechanisms available to them despite being dissatisfied by the care they receive.[601] Older adults often come to an understanding that the problems they are experiencing happen as a result of tensions within the home care sector. Some feel as though the power to improve the care they are receiving is out of their hands, and out of the hands of the individuals to whom they can complain.[602] This intensifies their feeling of hopelessness and makes them less likely to complain even when they feel as though they are not receiving the care they need. In addition, some report that they do not want to complain because they fear that voicing their complaints about not receiving enough care could lead to their institutionalization. Others report not wanting to be seen as “troublemakers” for fear that it will negatively affect the care they receive.[603]

Given these dynamics, the fact that in most cases, there is no independent body to hear the complaints likely worsens the task of complaining for older adults.  Certain CCACs have an Ombudsperson who acts as a mediator between a client and his or her case worker,[604] but others have only a client’s CCAC case manager as an initial point of contact for a client who wishes to make a complaint.[605] Having the option to contact an Ombudsperson instead of a client’s CCAC case manager increases the transparency of the complaints process and may make it a bit more comfortable for a client to file a complaint without being worried about confronting his or her caseworker directly.

In addition to raising questions of transparency, the lack of a mandatory neutral third party in the CCAC complaints process poses an accessibility problem: it may discourage adults from voicing their complaints. This can make it difficult for CCACs to receive an accurate picture of service recipients’ experience of home care. A clearly articulated complaints mechanism within the HCCSA that includes a neutral third party would help to improve the accountability, accessibility and transparency of home care rendered by CCACs.

Access to Information: Currently, the HCCSA requires that CCACs inform a person receiving community services in writing of the proceedings for initiating complaints about their service providers.[606] The provincial CCAC website contains a very brief explanation how to initiate a complaint, suggesting that clients contact their local CCACs directly for further details.[607] Information about the different routes for service quality complaints, or about the options for breaches of the “Bill of Rights” are not outlined in the public materials of the CCACs

While certain clients are comfortable reading written materials and initiating a complaint, accessibility issues arise for older persons receiving home care who have visual or cognitive difficulties. Understanding the complaints process is necessary to understanding the different options that are available to care recipients; for instance the difference between calling the LTCAL versus contacting a care provider directly. Without having access to consultation with a party who has information about the complaints procedure and can ensure that the client understands all available options, the written complaints procedure may not facilitate the process for all older adults. While some older adults may be able to rely on family members or friends to seek additional information when necessary and to paint a complete picture of the process, not all older adults will have access to such secondary sources of information. As such, the ‘written notice’ requirement under the HCCSA may not, in actuality, suffice to inform older persons of the complaints procedure. To alleviate this problem, it may be helpful to articulate a more comprehensive set of requirements for providing assistance with the complaints process within the HCCSA.

Transparency and accountability: Because the complaints mechanism is not centralized, it does not aid the CCACs in gathering information at the provincial level about the care provided by various service providing agencies. Since complaints regarding quality of services do not require written responses, it may also be difficult to track exactly how many complaints are made, what their subject matters are, or how they are dealt with. It also does not appear to facilitate the Ministry’s task of ensuring that high quality services are rendered uniformly across the province.

A study of the complaints received by three CCACs undertaken by the Auditor General of Ontario reported only a small number of formal complaints made by home care recipients across Ontario to their local CCACs. In the first three quarters of the 2009/10 fiscal period, only approximately 3 to 8 out of 1,000 home care recipients in these three CCACs had filed complaints. However, many concerns brought to the CCACs are not classified as formal complaints, but are simply resolved by case managers and included in the client files. These are considerably more frequent. In a review of the files of three CCACs, the Auditor General found approximately 1300 “events” over a period over nine months at two of the CCACs, and more than 600 events in a period of six months at the third.[608]

Overall then, there are significant gaps and shortfalls in the complaints and enforcement mechanisms for access to home care, so that in practice, older adults, particularly those who are disadvantaged in some way, may not be able to realize the anti-ageist principles that could and should be promoted through the law.

 

4.    Monitoring and Evaluation of the Law

This discussion has highlighted the “implementation gap” for the law regarding access to home care. Legislation which is positive in purpose and generally in harmony with anti-ageist principles may, in practice, be falling significantly short of its goals. In such circumstances, ongoing monitoring and evaluation of the implementation of the law and its outcomes may be of significant benefit.

The Ministry has the ultimate responsibility for monitoring the effectiveness of the laws and of the homecare services provided. To be selected by the Ministry, an agency must first be approved. To be approved, the agency must abide by the Bill of Rights and operate with “competence, honesty, integrity and concern for the health, safety and well-being of the persons receiving the service”.[609] The HCCSA requires the agencies to provide annual reports to the Ministry on their operation, and enables the Ministry to appoint program supervisors where necessary, as well as revoke or suspend approvals.

In late 2008, the Ministry announced a number of initiatives to strengthen the quality of home care services in Ontario, including:

  • Requiring CCACs to use “fairness advisors” for all requests for proposals;
  • Requiring CCACs to publicly disclose their rationale for the selection of service providers at the conclusion of the request for proposals process
  • Introducing public reporting of performance measures; and
  • Requiring all CCACs and service providers to develop annual continuous quality improvement plans.[610]

CCACs receive some information about clients’ experiences with their service providers from clients who choose to contact them and make complaints about their care, but there is no explicit requirement that CCACs ensure the adherence of service providing agencies to the Bill of Rights. An explicit oversight requirement would enable CCACs to obtain comprehensive information about service providers’ compliance with the Bill of Rights across the province.

While the HCCSA requires every service-providing agency to “ensure that a quality management system is developed and implemented for monitoring, evaluating and improving the quality of the community services provided or arranged by the agency,”[611] it does not specify what that system should involve. While the HCCSA allows the Minister to make regulations “governing the quality management system required to be developed and implemented (…),”[612] there is currently no oversight requirement under the HCCSA or its regulations relating to quality management.

Similarly, while the HCCSA mandates that service providers provide timely services, and maintain waitlists, it sets no specific standards in these areas. There are no legislative requirements as to timeliness beyond that it be “reasonable under the circumstances”,[613] no guidance as to how CCACs should priorize service needs, and no requirements regarding qualifications and training for homecare staff. Not only does this lead to significant variances in policies and outcomes across the CCACs, it reduces transparency and accountability within the system. Clients do not have a clear sense of the services to which they are entitled.

The CCACs have undertaken a number of initiatives to ensure that safe and quality care is provided “in the right place at the right time”. These include the standard use of Board Quality Committees, annual quality improvement plans, common client satisfaction surveys, common satisfaction surveys with contracted service providers, and satisfaction surveys with employees.[614] CCACs may visit the premises of service providers and review performance data such as rates of referral acceptance and number of missed visits. At least one CCAC has made it a priority to conduct ad hoc visits to each of its 14 service providers, in order to observe the quality of services rendered.[615]

The Auditor General found that all three of the CCACs it visited had conducted ad hoc site visits to some of their service providers, though only one had commenced routine site visits to audit all of their service providers. These CCACs had identified some common issues related to monitoring and oversight. For example, three quarters of the service providers assessed had limited ability to assess whether their staff had delivered the required services in the client’s home in a timely manner, and a third of service providers did not evaluate personal support workers by actually observing them providing services to clients.[616]

 

D.  Conclusion

The application of the Framework to the Home Care and Community Services Act points to the common problem of the “implementation gap”. The HCCSA deals with an issue of significant importance to older adults and other Ontarians who are vulnerable or at difficult points in their lives. It provides vital services, and is based on appropriate anti-ageist principles.

However, the legislation is largely discretionary rather than directive. Likely this was intended to provide for flexibility in meeting evolving and complex needs in a rapidly shifting environment. However, when combined with a lack of mechanisms for ensuring transparency and accountability, and an ongoing shortage of resources in not only the home-care sector but also in the long-term care and hospital sectors, this leads to access to justice issues for older adults, and for others who are affected by this legislation. This is particularly troubling because those affected by the HCCSA will be living with long or short-term impairments, will be highly dependent on the services provided, and therefore may have difficulty in understanding and asserting their rights. In practice, the legislation may fall significantly short of respecting and promoting the anti-ageist principles that underlie its design.

 

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