This section of the paper provides an overview of enforcement mechanisms utilized in government-funded developmental services systems in selected national and international jurisdictions. Within Canada, we examined four provinces: Alberta, British Columbia, New Brunswick and Quebec. Outside Canada, we examined selected provinces or states in Australia, the United States and the United Kingdom.
The purpose of this section is to facilitate a basic understanding of the enforcement mechanisms available in other jurisdictions in order to determine innovative approaches to enforcement that could potentially influence or be replicated or adapted in Ontario. This is not an exhaustive review or analysis of the laws and practices in these jurisdictions, as such a review is beyond the scope of this paper. For accuracy, we use the terminology employed in each jurisdiction.
1. Government Inspections and Oversight of Developmental Services
Alberta’s Ministry of Seniors and Community Supports administers the Persons with Development Disabilities (“PDD”) Program, the focus of which is to support the community inclusion and independence of adults with intellectual disabilities. The PDD Program funds, monitors and evaluates the provision of specific services for adults with intellectual disabilities, including community living supports, employment supports, community access supports to promote participation in society, and specialized community supports. These services supplement the support of family, friends and community members and assist the individual in living as independently as possible in the community.
Six regional PDD Community Boards work with individuals, their representatives and families, and service providers to deliver services throughout Alberta. Their purpose is to manage the provision of services, determine community priorities, assess the service needs of the region, and work with local agencies to provide services. The Community Boards are agents of the Crown and are overseen and evaluated by the Ministry of Seniors and Community Supports.
The PDD Program is governed by the Persons with Developmental Disabilities Community Governance Act. The Act contains a preamble which states that statutory programs, resources and services are, “best provided to adults with developmental disabilities in a manner that acknowledges responsibility to the community and accountability to the Government through the Minister.” The Act states that the role of the Minister includes evaluating results with respect to services for adults with developmental disabilities, setting standards for the provision of services, and monitoring and assessing the Community Boards. Community Boards are required under the Act to manage the provision of services to adults with developmental disabilities in a way that is responsive to the needs of those adults.
The Act also sets out inspection powers. An inspector can be appointed by the Minister or the Community Board, or can be a member of the Community Board itself. The inspector is authorized to ensure compliance with the Act by entering premises, requiring the production of documents or records in the possession of the Board or service provider, copying those records, and inspecting and taking samples of any material, food, medication or equipment being used in the provision of services to adults with developmental disabilities. An inspector cannot exercise any of these powers without obtaining the permission of the service provider.
The Minister may appoint someone to conduct an inquiry in respect of services for which funding is allocated by a Community Board, or in respect of how the Community Board carries out its activities under the Act. For these purposes, the person appointed to conduct the inquiry has all of the powers, privileges and immunities of a commissioner under the Public Inquiries Act.
2. Accreditation of Service Providers
The Alberta Council of Disability Services, a representative organization for 130 agencies that provide services to people with intellectual disabilities, offers accreditation to service providers that meet the criteria and standards outlined in a document entitled Creating Excellence Together. Under the agreement that governs the relationship between service providers, Community Boards and the PDD Program, service providers must comply with these standards or another recognized accreditation process. The extent to which a service provider has complied with these criteria is measured through an on-site visit conducted by the Council of Disability Services. Two levels of accreditation are possible: primary and advanced. Both levels address issues such as whether people who receive developmental services are supported to make decisions about every-day matters; are treated with dignity and respect; have strong, positive relationships; are included in the community; are supported to take care of their health; are free from abuse; and are able to access fair, equitable and reasonable dispute resolution processes.
3. Complaints and Appeal Mechanisms
The PDD Program emphasizes that disputes are to be resolved at the service provider, Community Board or regional level wherever possible. Individuals who have concerns or complaints about decisions made regarding their services can file an appeal using the service providers’ appeal process. The Community Board is responsible for ensuring that the appellant is given adequate access to dispute resolution and appeal processes.
The PDD Program has an appeal process that individuals who receive services can use when they are unhappy with decisions of a Community Board or PDD staff member that affect them. The appeal process is independent from the program itself. Decisions that are not subject to appeal are those that affect contractual arrangements such as decisions to enter into, amend or terminate a contract with a service provider. Reductions or suspensions of services, or disagreements concerning the level of services being provided can be appealed. A person files an appeal using the Notice of Appeal form, which must be completed and submitted to the Appeal Secretariat within 30 days of receiving the decision that is the subject of the appeal. The Secretariat contacts the person who filed the appeal to discuss the concern, and may refer the matter for dispute resolution or mediation. Dispute resolution is voluntary and entails referring the appeal to the CEO of the relevant Community Board, who may investigate the appeal. Likewise, mediation is voluntary and is generally pursued when dispute resolution has not been successful. The majority of complaints made to the appeal process are resolved through the mediation process. The PDD program may also refer individuals who require support to the Alberta Association for Community Living. 
If an appeal is not resolved within 45 days, a hearing is scheduled. The hearing is conducted by an Appeal Panel, established under section 15 of the Act, and made up of up to three individuals from the eight PDD Appeal Panel Members who have been appointed by the Minister. Prior to the hearing each party submits written information about the appeal. At the hearing the appellant and the Community Board are provided with an opportunity to present their case and question the other party. The Appeal Panel may also question either party. The rules of evidence that apply to judicial hearings do not apply to hearings before the Appeal Panel, and the panel must consider any evidence that is, in its opinion, reliable and relevant to the matter being heard and weigh it accordingly. The Appeal Panel renders its decision in writing, generally within one month of the hearing. The panel can change, agree with or reverse the decision that is the subject of the appeal. Decisions of the Appeal Panel are final. Previous decisions of the panel do not establish binding precedents and the panel generally does not award costs.
The PDD program also monitors complaints it receives using a dispute-tracking system. This allows the program to oversee agencies that receive many complaints, and work with service providers to develop training, policies and plans to address systemic problems.
4. Inspections and Complaints for Supportive Living Accommodations
The Supportive Living Accommodation Licensing Act (“SLALA”) applies to supportive living accommodation that is provided to 4 or more adults who are not related to the operator, and where the operator provides for services related to safety, housekeeping or meals. This includes residential facilities such as group homes, although the Act does not specifically state this. The SLALA sets out a framework for the reporting, investigation, and resolution of complaints using a variety of positions designated by the Minister, including directors, inspectors, complaints officers, and investigators. While inspections are conducted by inspectors at the request of the director, complaints officers and investigators become involved as part of the complaints process set out in the Act.
At the request of the director, the inspector may exercise a number of powers in order to ensure compliance with the SLALA, its regulations, an order issued under the Act, or a condition of a licence. These include the power to enter the supportive living accommodation at any reasonable hour and inspect it, to require the production of records and documents that pertain to the supportive living accommodation and examine and copy them, to inspect and take samples of material, food, and equipment used in the supportive living accommodation, to perform tests, take photographs or make recordings, and to interview the operator of the supportive living accommodation. The inspector can only exercise these powers with the permission of the operator of the supportive living accommodation, but the inspector can only enter a resident’s unit with the permission of the resident or the resident’s legal representative. The results of the inspection must be reported to the director, and the operator of the supportive living accommodation. After inspection, if the director is of the opinion that the SLALA , its regulations, an order issued thereunder, or a condition of the license has not been complied with, s/he may issue an order requiring the operator to take action within specified time limits, issue a stop order, or cancel the licence issued to the operator. The director may require any order to be posted in a prominent place in the supportive living accommodation.
The Minister may also appoint complaints officers who have the same powers as inspectors and investigators. The role of the complaints officer differs from that of an inspector; whereas the inspector conducts inspections upon request by the director, the complaints officer becomes involved once a complaint has been made to him or her about the failure of an operator to comply with the SLALA, regulations, an order, or a condition of the license. The complaints officer reviews the complaint to determine if an investigation is necessary by making inquiries or attempting to resolve the complaint through mediation or conciliation. If an investigation is necessary, the complaints officer can refer the complaint to an investigator. The complaints officer must inform the complainant, if known, of any decision he or she makes not to refer the complaint to an investigator, and this decision can be appealed to the director.
Investigators are also designated by the Minister. The investigator becomes involved once a complaint is referred by the complaints officer, and has the same powers as an inspector for the purposes of making an investigation. The investigator must inform the operator and the director of the results of the investigation, and the director must then notify the complainant, if known, and the operator of the results of the investigation, including whether or not the complaint was found to be substantiated. If after the investigation the director deems that the SLALA, accompanying regulations, an order issued thereunder, or a condition of the license has not been complied with, the director may order the operator to take measures within a specified time, issue a stop order, or cancel the license, and these directions must be made in writing.
Pursuant to section 16(2), a stop order can require the operator to cease the contravention specified in the order, stop any activity occurring at a supportive living accommodation, or stop operating the supportive living accommodation altogether. If the operator fails to comply with the stop order, the director may make an application to the Court of Queen’s Bench for an order requiring compliance. Section 22(1) further sets out that a person who fails to comply with an order is guilty of an offence and is liable to a fine of not more than $100,000, or in the case of a continuing offence, to a further fine to a maximum of $1000 per day for each day that the failure continues.
B. British Columbia
In British Columbia, the delivery of services to people with intellectual disabilities falls under the responsibility of Community Living British Columbia (“CLBC”). CLBC was designated a Crown agency under the provincial government’s Crown Agency Secretariat on July 1, 2005. As a Crown agency, CLBC is responsible to the provincial government. In particular, CLBC is responsible for developing broad services, funding, and capital plans for both vocational and residential supports for people with intellectual disabilities in British Columbia, and submitting these plans to the provincial government.
CLBC has a complex organizational structure, shown in Figure 1 below. Familiarity with this structure assists in understanding how CLBC’s various enforcement mechanisms operate.
Figure 1 
Community Councils are established in each of CLBC’s four regions: Coast, Interior, North, and Vancouver Island. The purpose of these Councils is to ensure that the communities served by CLBC are able to engage meaningfully in decisions about how services are delivered.
CLBC has a Board of Directors, which is appointed by the Minister of Housing and Social Development. Because CLBC is a Crown agency, the Board of Directors has a fiduciary duty to its stakeholders, and is responsible for supervising CLBC management and overseeing the conduct of the organization’s business. Its primary responsibility is to guide CLBC’s short-term and long-term goals, “consistent with the Board’s responsibility to the government and the stakeholders.”
Under the Community Living Authority Act, the Board of Directors is required to have an Advisory Committee. The Advisory Committee consists of one member from each of the Community Councils, and meets four times per year. The Advisory Committee assists the Board of Directors by providing it with information and advice. To this end, the Committee serves as a go-between for the Community Councils and the Board of Directors. The Advisory Committee relays the concerns of the Community Councils to the Board, and makes recommendations on how CLBC policies and practices can be improved in the interests of those who receive services from CLBC. The Advisory Committee also provides feedback to the Board from self-advocates and families about how the service delivery system is functioning.
Two safeguards are employed by CLBC to ensure that services are focused on and responsive to the needs of the individuals receiving them. One safeguard is an external quality service review that addresses complaints about services and the other is the Advocate for Service Quality, who assists in situations where the person’s concerns may not have been resolved satisfactorily with CLBC. An additional mechanism that pertains to service quality is the complaints resolution process.
1. Complaints Resolution Process
CLBC’s Complaints Resolution Policy sets out a process by which complaints about services can be made. A complaint can be initiated by an individual, youth, family member or other person if that person is dissatisfied with a service provided by CLBC, disagrees with a decision made by a CLBC staff member, or believe they have not been treated fairly or respectfully.
The policy stipulates that each contracted service provider must have a complaints processing and resolution system for situations where an individual takes the complaint directly to the service provider, which is encouraged. Complaints or concerns should initially be raised with the staff member with whom the individual works, in the hopes that the complaint will be resolved in a timely manner before becoming a serious problem. CLBC recommends this as the first step, even if the individual’s complaint relates to unfair or disrespectful treatment by that particular staff person.
If the individual is not satisfied with the outcome of addressing the issue directly with the staff member, or if for some reason the individual or family member does not wish to raise the complaint with the service provider, it can be discussed with CLBC staff or submitted as a complaint through the CLBC complaints process. A Complaints Resolution Form is available at CLBC offices and on the CLBC website. A complaint can be made by the individual, a family member, advocate, support network member or service provider. CLBC staff respond to the complaint within 48 hours, and will make every effort to address the complaint within 30 days. The complaint is sent to a Quality Service Manager or to a Community Planning and Development Manager. When either of those managers receives a complaint, s/he transmits the complaint to the staff involved and provides advice or options as to how the complaint can be resolved. Alternatively, the manager contacts the person making the complaint within ten business days to discuss the issue and determine how to address or resolve it. The manager advises the complainant of the outcome of the review, the decision, and the reasons for the decision. The manager then forwards the complaint to the Director of Regional Operations who may, “consult with a broader range of colleagues to assess similar complaints, precedents and potential options for resolution.” The Director must also forward the complaint to the Director of Quality Assurance as required or requested.
If the complainant is not satisfied with the response, s/he may ask the Director of Regional Operations to review the complaint. Another alternative is to have the Director of Quality Assurance review the complaint and assist in resolving the concern.
If the complaint remains unresolved and all local or regional complaints processes have been exhausted, the Complaints Resolution Policy suggests that the manager refer the matter to the Director of Quality Assurance. The Director cannot override decisions made at the local or regional level, but may suggest alternative approaches to the resolution of the complaint. The main purpose of the Director of Quality Assurance is an almost ombuds-like role, “to determine whether the process followed has been clear and accessible for individuals, youth, and families, to identify potential areas for either resolution or further discussion and to provide support as required.” However, the policy does permit the Director to carry out an independent practice review if the issues arising from the complaint are complex, or there is something to be gained from the participation of an independent third party.
If, having exhausted this process, the complainant is not satisfied with either the outcome or the process by which the outcome was achieved, the complaint will be forwarded to the CEO, who has final decision-making authority. The CEO must review the decision and the information relied upon in making the decision, send the complainant a final decision with reasons, and advise the complainant of external complaint processes, such as through the provincial Ombudsman or the Advocate for Service Quality for People with Developmental Disabilities.
At any time in this process, the complainant is permitted to take the complaint to an external body such as the Advocate for Service Quality or the Ombudsman of British Columbia. Despite the existence of this multi-layered complaint process the majority of people address their complaints with service providers at the local level, rather than using the complaints process.
CLBC is required by the Complaints Resolution Policy to keep records of all complaints and the outcomes in order to improve services, policies and the training of CLBC staff. This may include revisions to policies and procedures, responding to individuals, youth and families, changes to practice or in-depth review of potentially systemic issues.” This indicates that the complaints resolution process is not intended merely to address individual complaints, but to identify and address systemic problems as well.
The policy states that the complaints process should be accessible and consistent, with a person-centred, rights-based approach. The intention is that the concerns and interests of the affected individual will guide the complaints resolution process, and that the individual will be supported to participate fully in the process so that their independent views will be heard, respected and considered. The policy also states that the person making the complaint has the right to have an advocate, family member, or friend support him or her throughout the complaints resolution process. One way in which the complaints process is accessible is via ensuring that information about the process is widely available and easy to understand. When CLBC staff at any location receive a complaint, their role is to, “…ensure that the views of the person making a complaint are fully heard and wherever possible an acceptable resolution is found for the person and CLBC.”
2. External Review Procedures
CLBC’s External Review is a formal safeguard, the purpose of which is to have a neutral third party investigate situations that arise in the course of service delivery, with the goal of enhancing accountability, service quality, and the competency of service providers. The External Review is governed by an External Reviews Policy.
The external reviewer may be a person or organization. The person or organization must be independent and performs its duties under contract to CLBC. The external reviewer may provide a myriad of services, including consultation; problem-solving and conflict resolution; quality assurance; and debriefing affected individuals and their families, affected services providers, and CLBC staff.
There are three kinds of External Reviews: serious incident review, quality service review, and instructional review. A Quality Service Review is triggered when between one and three incidents occur that raise concerns that there is a risk that an individual’s rights will be infringed upon. These incidents may include a substantial change in services, a complaint by the individual after the CLBC complaints process has been exhausted, or ongoing health and safety concerns.
The Quality Service Review is “an in-depth audit of specific or overall services that a service provider is performing.” It is instigated by CLBC as needed, “or as part of on-going evaluation of service provider conformance with CLBC mission, values, and contract expectations, including standards.”
The External Review Policy emphasizes that the full participation of everyone involved is essential to an effective External Review, especially the person who is receiving services. The process is instructional and educational, not penalty-driven. The policy encourages CLBC staff to ensure that the review is transparent so that those involved can communicate openly and experience minimal anxiety. The process is intended to foster willingness to learn and change, and should respect the dignity and value of those involved in the review, especially the individuals who receive services. The policy considers the actions that may be taken by CLBC after an External Review has been carried out; these actions include changing the service provider, modifying the service contract, terminating the service contract, or amending CLBC’s policies and practices. The policy also states that CLBC use the results and recommendations that arise from the External Review to educate service providers and other stakeholders in order to maximize the utility of the review. This indicates that like the complaints resolution process, there is a systemic dimension to the External Review.
3. Advocate for Service Quality
The Advocate for Service Quality (“Advocate”) is appointed by, and reports to the Minister of Housing and Social Development, but does not work directly for the provincial government. The Advocate’s role is to assist adults with intellectual disabilities in receiving good quality services from the Ministry of Housing and Social Development, CLBC, and other provincial ministries or service agencies. The Advocate works collaboratively with CLBC and several provincial government ministries, but is independent from them.
A person with an intellectual disability can call the Advocate and request assistance to resolve complaints about situations in which the person does not like the services she or he is getting, feels she or he is not being treated fairly or respectfully, or does not agree with a decision made on his or her behalf. The Advocate provides a means by which complaints about government ministries, crown agencies, or service providers can be heard and responded to, and is also able to review service providers’ processes and carry out impartial reviews on request. The Advocate does not make binding decisions.
An additional element of the Advocate’s role is to encourage and assist adults with intellectual disabilities to advocate on their own behalf. The Advocate’s pamphlet states, “The philosophy of the office is to assist people to advocate for themselves, to support their ability to ‘work through the system,’ to encourage the participation of those involved in decision-making and to promote problem-solving and resolution at the local level.”
4. Accreditation of Service Providers
According to CLBC the majority of service providers in British Columbia are accredited by the Council on Rehabilitation Facilities (“CARF”), an independent, non-profit organization that provides accreditation to health and human service providers. In order to be accredited, service providers must have statements or policies concerning recipients’ rights, education programs or materials about rights, and complaint procedures or policies. Posters or other material about recipients’ rights must be displayed in the service provider’s agency or residential facility. CLBC itself is in the process of becoming accredited by CARF. As part of this process CLBC is developing a bill of rights as well as a rights handbook for service providers. These materials will be available in pictorial and plain language formats. 
C. New Brunswick
1. Monitoring and Complaints Procedures for Adult Residential Facilities
The New Brunswick Department of Social Development established Standards and Procedures for Adult Residential Facilities (“Standards and Procedures”) in 2009. The Standards and Procedures apply to residential facilities that offer long-term care services as defined under the Family Services Act, and are intended to guide Department of Social Development staff, board members, operators, and the staff of residential facilities.
The Standards and Procedures state that the approach to service delivery is client-focused, to ensure that the dignity of the person is recognized and respected. The Standards and Procedures discuss quality assurance as one of the principles upon which service delivery is based; long-term care residential facilities are monitored regularly to enhance accountability, effectiveness and efficiency in the planning and delivery of these services. The Standards and Procedures also require operators of residential facilities to ensure that a sufficient level of services is provided to residents, and that these services are held to a high standard.
The Standards and Procedures recommend that operators of residential facilities should:
· establish and follow a regular written procedure for hearing the concerns and complaints of residents;
· explain the procedure for hearing concerns in a clear and simple manner, and indicate that these concerns or complaints can be expressed without fear of retaliation;
· make the procedure accessible to the residents and their relatives or advocates;
· inform staff when they are hired and thereafter at regular staff meetings of written procedures for addressing concerns of residents;
· record resident concerns in a daybook;
· investigate the concerns expressed by residents, their relatives or their advocates; and
· record the outcome of the investigations in the daybook.
The Standards and Procedures state that operators must inform residents upon their arrival at the residential facility of the process for making and hearing complaints.
The Standard also sets out a list of residents’ rights, which are based on the requirement, in accordance with Regulation 83-77 under the Family Services Act, that operators run the facility in a manner that maintains the spirit, dignity and individuality of the residents. Among the rights recognized are the right to be free from mental and physical abuse; to be treated with courtesy and respect, in a way that recognizes dignity and individuality; to be sheltered, fed, clothed, groomed and cared for in a way that is consistent with the resident’s needs; to be told who is responsible for and who is providing the resident’s direct care; to be permitted to exercise rights of citizenship, and raise concerns or recommend changes in policies and services on behalf of oneself and others, without fear of discrimination, coercion, reprisal, or interference; and to be informed in writing of the laws, rules, and policies that govern the operation of the home and the procedure for lodging complaints.
Quebec’s health and social services system is governed by some 30 statutes which establish a three-tiered governance structure. The Ministère de la santé et des services sociaux oversees, regulates and coordinates the entire system and formulates objectives, policies and priorities for the regions. In turn, regional service agencies are in charge of implementing and coordinating health and social services in their region. Finally, five types of institutions provide health and social services on a local level: local community service centres, hospitals, child and youth protection centres, residential and long-term care centres, and rehabilitation centres.
Individual institutions are overseen by a Health and Social Services Centre (“CSSS”), which closely monitors the needs of the population it serves. The mission of the CSSS is to ensure the accessibility, continuity and quality of service provided by the institutions under its purview.
Each institution’s Board of Directors must establish by-laws outlining a formal complaint examination procedure. In addition each institution has a Users’ Committee, which exists to ensure that consumers of the services are afforded all their rights under the law and are treated with respect and dignity.
1. Complaints Commissioner
A Service Quality and Complaints Commissioner (“Commissioner”) is appointed and trained to consider user complaints. If a consumer of the service is unhappy with the quality or level of service he or she is receiving, the first step is to discuss the issue with the caregiver, the staff, a professional or the head of the service centre. If this approach fails to resolve the situation in a satisfactory manner, the consumer can register a complaint with the Commissioner. Complaints can also be registered by any person who acts as an authorized legal representative of the individual who is receiving the services. This can be done in person, over the phone, or in writing, and if the person needs help in registering a complaint, the Commissioner and the Users’ Committee are available to assist. Once the complaint is made, the Commissioner must acknowledge receipt within five days.
Subsequently, the Commissioner has 45 days during which to investigate the complaint and contact all relevant parties. In practice, Commissioners do not always conduct investigations, as they may be able to resolve complaints by facilitating discussion between the parties. At the conclusion of the investigation, the Commissioner must report his or her findings to the person who has made the complaint. If the complaint was made in writing, the decision must be delivered in writing. The Commissioner’s findings and recommendations are reported to the service agency’s Board of Directors. While not binding, the Commissioner’s recommendations are typically treated seriously and are implemented.
Should the Commissioner deliver a decision that is unsatisfactory to the complainant or fail to deliver a decision within 45 days, a further complaint lies with the Ombudsman.
An Act Respecting the Health and Social Services Ombudsman (“Ombudsman Act”) empowers an appointed ombudsman to examine the conclusions reached by the Complaints Commissioner, and allows for an inquiry to be held as part of the investigation. To further that goal, the ombudsman must establish a complaint examination procedure, the specific contents of which are mandated by article 10 of the Ombudsman Act. The ombudsman is appointed by the National Assembly of Quebec and is accountable only to them. He or she is, therefore, independent.
At the conclusion of the investigation, if the ombudsman believes that an error or injustice was committed, he or she will transmit recommendations to the government ministry, agency or institution so that it can remedy the situation. That institution or agency then has 30 days to inform the ombudsman and the complainant, in writing, of the actions that it is taking, if any. The ombudsman does not have the authority to impose any remedy. However, according to the Office of the Quebec Ombudsman, in 2008-2009, 99% of its recommendations were accepted regardless of the fact that the ombudsman has no powers of enforcement.
3. Users’ Committees
Each service provider has a Users’ Committee associated with it. Users’ Committees host social and educational events; promote ways to improve quality of life; support consumers of services if they need to file a complaint; and ensure that consumers are represented on the agency’s Board of Directors. Most Users’ Committees are elected by consumers of services, and those who serve on the Committees receive orientation or training upon their election. Committees are typically comprised of a majority of consumers, but also include parents or legal guardians of consumers. Users’ Committees receive funding directly from the operating budget of the service provider with which they are associated. They are accountable only to the service provider’s Board of Directors. Users’ Committees assist and support consumers who wish to make complaints to the Complaints Commissioner by explaining the complaints process; helping the consumer to make the complaint in writing; accompanying and assisting the consumer at any meetings; and advocating on the consumers’ behalf. Committees are also responsible for monitoring the needs of all of the agency’s consumers and conducting systemic advocacy on their behalf, including making reports to the Board of Directors.
E. Australia: Victoria
On January 1, 2009, the National Disability Agreement (“NDA”) came into effect. The NDA was signed by the Australian government as well as individual State and Territory governments, with a view to improving and increasing services for people with disabilities, their families and carers. The NDA Reform Agenda specifically concentrates on introducing national tools to identify service benchmarks, plan for changing needs, identify people at risk and work towards program and service delivery consistency across jurisdictions. The NDA sets out several priority areas, one of which is the development of Quality Improvement Systems based on Disability Standards. By mid-2010, a National Disability Quality Framework with a National Quality Assurance system will be developed, thus introducing a national approach to quality assurance respecting disability services.
Australian states and territories are responsible for the provision of specialized disability services. On July 1, 2007, Victoria introduced the Disability Act 2006 (Vic.) (“DA”), replacing the Intellectually Disabled Persons’ Services Act 1986 (Vic.) and the Disability Services Act 1991 (Vic.). The DA provides a detailed framework for the provision of disability services and an improved complaint and review system. Some of the key stated objectives of the DA are to:
· promote and protect the rights of persons accessing disability services;
· support the provision of high quality disability services; and,
· make disability service providers accountable to persons accessing those disability services.
1. Monitoring of Quality Assurance
Victoria has developed the Quality Framework for Disability Services (“Framework”) as a means of monitoring, measuring and managing the quality of disability service providers. The Framework also supports the implementation of standards for disability services that apply to both public and private sectors. The DA states that the Minister must determine service standards to be met by disability service providers when providing disability services under the DA. The standards must be published in the Government Gazette. Moreover, performance measures in relation to the standards must be specified.
The DA creates an offence for disability service providers who fail to comply with the stated standards. Sections 101-103 of the DA grant power to the Secretary to appoint an administrator in cases where a disability provider has failed to provide efficient or effective service or has failed to fulfill the requirements of its service agreement. Specific triggering points for the appointment of an administrator are outlined in the DA, as are provisions that regulate the appointment and the powers and duties associated with the administrator’s role. The DA also imposes additional requirements on administrators appointed to disability services that provide residential services to persons with disabilities.
2. Complaints to Service Providers
One of the goals of the DA when it was enacted was to build a strong complaint and review system. To that end, the DA has set out several complaint and appeal processes.
The DA requires that all disability service providers have an effective system for dealing with complaints made by consumers of their services. This system must be confidential, visible and accessible to consumers. Under section 89, disability service providers are responsible for ensuring that consumers of their services know how internal complaints can be made. Disability service providers must keep track of the numbers of complaints received on an annual basis as well as how those complaints were addressed. This information is then reported to the Disability Services Commissioner.
To ensure that consumers who make an internal complaint do not face repercussions for doing so, section 106 of the DA states that a disability service provider must take all reasonable steps to ensure that a person using the services is not adversely affected by making a complaint.
3. Complaints to the Disability Services Commissioner
The Disability Services Commissioner (“Commissioner”) is independent from government and is responsible for overseeing the quality of services delivered by disability service providers. The DA establishes the Commissioner and outlines his or her functions and powers in sections 14-19. The main functions of the Commissioner, as they relate to the complaints process are to:
· investigate complaints relating to the provision of disability services;
· identify causes of complaints and create ways to diminish or remove them;
· maintain records of complaints and publish such information;
· refer issues to the Disability Services Board; and,
· provide training for disability service providers on how to prevent and resolve complaints.
The Commissioner’s work is guided by the values of rights, respect and fairness; rights refers to the right of people with disabilities to receive quality services that support their quality of life and to make complaints about services; respect refers to taking all complaints seriously, maintaining confidentiality, and treating all parties with dignity, sensitivity and courtesy; and fairness refers to resolving complaints through a fair process, which includes taking an objective and unbiased approach to complaints, ensuring that there are no conflicts of interest, and making decisions based on verified information. The Commissioner’s work is also guided by the principles of accessibility, accountability, excellence and taking a person-centred approach, which are meant to ensure that the Commissioner’s work is consistent with the DA, Australian human rights legislation, and the CRPD. 
The rules and procedure for making complaints to the Commissioner are set out in sections 107-128 of the DA. Any person can make a complaint to the Commissioner, orally, in writing, or by other appropriate means given the person’s circumstances. In turn, the DA bestows upon the Commissioner broad and flexible discretion to entertain a variety of complaints that arise regarding the provision of disability services.
Once a complaint has been received, the Commissioner has 28 days to assess the complaint and decide whether it is reasonable. Sections 114 and 115 outline some examples where it may be appropriate for a Commissioner to decline to consider a complaint. For example, the complaint may not comply with the requirements for making a complaint under the DA, or is frivolous, vexatious or lacking in substance. Complaints relating to incidents that occurred more than a year ago and which have no good reason for the delay in bringing the complaint may also be declined. In the event that the Commissioner declines to consider a complaint, written notice must be given within 14 days to the person who made the complaint. Likewise, if the Commissioner decides to consider the complaint, written notice must be provided within 14 days to the disability service provider.
Section 116 mandates conciliation in cases where the complaint is suitable for such a procedure. The procedure is analogous to the Canadian concept of mediation, and involves the Commissioner facilitating discussions between the disability service provider and the complainant and, if possible, assisting the parties to reach a resolution.
The DA empowers the Commissioner to investigate complaints that are not suitable for conciliation or when conciliation was attempted unsuccessfully. The investigative powers of the Commissioner may be broad, as the DA grants discretion to the Commissioner to determine what procedure to follow. The Commissioner is not bound by the rules of evidence, but is bound by rules of natural justice and is required to use minimal formality and technicality in the investigation. If the Commissioner decides that the complaint is justified, he or she has 14 days to notify both parties, in writing, of the decision, the reasons for the decision and the actions that must be taken as a consequence of the decision. This triggers a 45-day period during which the disability service provider must send a report to the Commissioner outlining the actions which it has taken with respect to the complaint.
4. Oversight by the Disability Services Board
In conjunction with the Commissioner, the DA establishes the Disability Services Board, whose role is to provide advice to the Commissioner and to generally oversee the complaints system. The functions of the Board include providing expertise, guidance and advice to the Commissioner, referring matters to the Commissioner for inquiry and advising the Minister on the disability complaints system and on issues referred to the Board by the Commissioner. 
5. Appeals to a Tribunal
Under various sections of the DA, the Victorian Civil and Administrative Tribunal has jurisdiction to review a wide range of decisions made by disability service providers. This permits consumers of a disability service provider to go to the tribunal directly, if their complaint falls within the ambit of one of the enumerated decisions. For example, the tribunal can become involved where the disability service provider decides to reduce the services provided as part of the residential fee a consumer pays. Reduction of services includes a reduction in the level or range of services, or a termination of services. Section 70(1) of the DA states that if service items are reduced, the service provider must also reduce the amount of the residential fee by an amount that is agreed upon by both the service provider and the resident. If agreement cannot be reached, the service provider or the resident can apply to the tribunal to make a determination of the appropriate amount. Under section 82 of the DA, a resident may also apply to the tribunal for a review of a notice to vacate. The tribunal will then determine whether or not the notice is valid.
F. United Kingdom
The Care Standards Act 2000 (“CSA”) established the National Care Standards Commission. The National Care Standards Commission was a non-governmental public body that regulated social and health care services on a national level, displacing the earlier local council system. As of April 1, 2010, the National Care Standards Commission has been replaced by the Care Quality Commission (“CQ Commission”), which has exclusive responsibility for the inspection, monitoring and regulation of health and social care. The Compliance Guideline Criteria are standards that the CQ Commission must consider when making decisions regarding service providers. These criteria contain essential standards of quality and safety, consisting of 28 Regulations and associated Outcomes that are set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (“HSCA Regulations”) and the Care Quality Commission (Registration) Regulations 2009.
1. Monitoring by the Quality Care Commission
Under its regulatory umbrella, the CQ Commission continually monitors service providers to ensure that they comply with essential standards of quality and safety. The CQ Commission is still brand new, but will have quality assurance mechanisms in place to monitor consistency. Additionally, it will assign a Quality and Risk Profile to each registered service provider. Non-compliance will be addressed by a variety of actions including warning notices, imposition or variation of conditions, suspension of registration to provide certain services, fines, prosecution or cancellation of registration.
Quality assurance is provided under Regulation 10 and Outcome 16. Regulation 10(1) imposes on service providers the requirement to regularly assess and monitor the quality of services provided and identify, assess and manage risks. To ensure that this goal is met, the service provider must seek out professional advice and consider, among other things, the views expressed by its consumers (including complaints), appropriate professional and expert advice, as well as reports and reviews prepared by the CQ Commission from time to time.
2. Complaints to Service Agencies
Pursuant to Regulation 19 agencies are responsible for having effective complaints systems in place for identifying, receiving, handling and responding appropriately to complaints and comments made by consumers of the service or their representatives. Additionally, the agency must assist consumers and their representatives with bringing forth the complaint if necessary and ensure that all complaints are fully investigated and resolved as much as is reasonably practicable. Finally, all complaints and agency responses to them must be reported to the CQ Commission.
Self-advocacy is promoted under Regulation 17 of the HSCA. The Regulation states that service providers must, as much as is reasonably practicable, make arrangements to encourage their consumers and representatives to understand the choices available to them with respect to services, assist them to express their views, provide opportunities for them to manage their own care or treatment and provide appropriate opportunities, encouragement and support to them with respect to promoting autonomy, independence and community involvement.
4. Appeals to Ombudsmen or Adjudication Service
Under Outcome 17, which addresses complaints that can be made pursuant to Regulation 19 of the HSCA, consumers of a service agency must be informed that they can rely on the National Health Service complaint process in any circumstance where their care, treatment and support was funded by the National Health Service. This is the case even if the service was not delivered at a National Health Service facility.
Additionally, consumers who are not satisfied with the findings or outcome of the response to their complaint must be advised of their right to refer the matter to the Health Service Ombudsman, the Local Government Ombudsman or the Independent Sector Complaints Adjudication Service, depending on the type of complaint in question.
The Local Government Ombudsman (LGO) receives complaints about local councils and some other authorities, and its services are free. There are three LGOs in England who are appointed by the Queen. The LGO website makes it clear that its role is not to be a consumer champion, but rather is to examine complaints in an impartial and independent manner. Decisions of an LGO are final and not subject to appeal, but can be taken to the High Court on the ground that there is a legal flaw in the LGO’s reasoning for the decision. If people are not satisfied with the final answer that they receive from a council in response to a complaint, the person may submit a complaint to an LGO within 12 months by telephone or by filling out the online complaint form. In some cases, complaints are allocated to an investigator who may make decisions on the Ombudsman’s behalf. Before a complaint is investigated, the LGO must first determine whether it has legal authority to consider the complaint. Typically, the LGO will provide the complainant with an opportunity to comment on this issue before making a final decision, unless it is obvious that the complaint cannot be considered. Once the LGO has made a final decision, it will write to the complainant and explain its reasons for the decision. There are four different outcomes that may result from the LGO’s involvement. The LGO may find that there was no fault on the part of the council, or that even if the council is at fault, the effect on the complainant is not serious enough to continue investigating the complaint. If the complaint is sufficiently serious, the LGO may suggest how the complaint can be resolved in hopes of achieving a settlement between the council and the complainant. A formal written report by the LGO is the fourth possible outcome, if the council does not agree to the proposed settlement or if the LGO thinks that the issue is of interest to the public. The report may contain recommendations as to how the council should address the issues raised by the complaint, but councils are not obligated to implement these recommendations.
G. United States: California
In 1977, California passed the Lanterman Developmental Disabilities Act (AB 846) (“Lanterman Act”) as part of California’s Welfare and Institutions Code. The Act sets out the rights and responsibilities of people with intellectual disabilities. In 2003, the Act was amended to expand its reach, and it now applies to anyone who is experiencing significant functional limitations in “three or more … areas of major life activity.”
The Lanterman Act establishes a regulated network for the planning, provision and co-ordination of services for people with disabilities. To that end, it charges the state’s network of regional centers with advocacy for, and protection of the rights of people who fall within its ambit. Section 4620 states:
In order for the state to carry out many of its responsibilities as established in this division, the state shall contract with appropriate agencies to provide fixed points of contact in the community for persons with developmental disabilities and their families, to the end that these persons may have access to the services and supports best suited to them throughout their lifetime. It is the intent of the Legislature in enacting this division that the network of regional centers for persons with developmental disabilities and their families be accessible to every family in need of regional center services. It is the further intent of the Legislature that the design and activities of regional centers reflect a strong commitment to the delivery of direct service coordination and that all other operational expenditures of regional centers are necessary to support and enhance the delivery of direct service coordination and services and supports identified in individual program plans.
The Legislature finds that the service provided to individuals and their families by regional centers is of such a special and unique nature that it cannot be satisfactorily provided by state agencies. Therefore, private nonprofit community agencies shall be utilized by the state for the purpose of operating regional centers.
The various responsibilities of a regional center are outlined in Article 2 of Chapter 5 of Division 4.5 of the Lanterman Act. They include, among other things, assurance control respecting the quality and effectiveness of services and supports that are provided to the consumer. Moreover, some regional centers may, pursuant to subsection 4512(b) of the Lanterman Act, provide self-advocacy training, facilitation, and peer advocates to people with disabilities.
Article 4502 of Chapter 1 of Division 4.5 establishes a set of rights for people with intellectual disabilities. These include the right to treatment and supports that protect the personal liberty of the person in the least restrictive environment; the right to dignity, privacy and humane care; the right to social interaction and participation in community activities; the right to physical exercise and recreational opportunities; the right to be free from harm, unnecessary physical restraint, isolation, excessive medication, abuse or neglect; the right to make choices about where and with whom to live, how to spend one’s time, and program planning and implementation; and other rights. The Act requires service providers to give consumers opportunities to make decisions about daily life as well as the information needed to make those decisions.
1. Oversight by the State Council on Developmental Disabilities
The Lanterman Act establishes the State Council on Developmental Disabilities (“SCDD”) in Chapter 2 of Division 4.5. The SCDD is funded by the government and functions as an independent state agency made up of people from diverse socioeconomic, ethnic and geographic backgrounds. The SCDD in turn funds 13 Area Boards that act as regional bodies to ensure that local needs and priorities are being addressed. Area Boards are on the front lines of service delivery in that they provide public education, outreach and encourage individuals to start and set up self-advocacy organizations.
The primary function of the SCDD is to create and monitor a State Plan, which establishes goals and objectives for improving the service system in California. The State Plan focuses on areas that must be enhanced and services that are currently lacking. The State Plan aids the SCDD in making recommendations and providing advice and guidance to the California government and legislature.
Built into California’s legislative scheme is the recognition that people with disabilities should be able to advocate for their own rights. To that end, Area Boards both encourage people with disabilities to start advocacy groups and help to establish such groups. Area Boards also have a mandate to provide education to people with intellectual about rights and complaint procedures. Moreover, regional centers may, but are not required to, offer self-advocacy training, facilitation and peer advocates. To further this goal, the regional center may hire facilitators, sponsor conferences held by self-advocacy groups and cover the expenses of transportation to meetings.
In addition to the assistance provided by Area Boards and regional centers, there are a number of organizations in California that promote and support self-advocacy. These include People First and Disability Rights California, whose Developmental Disabilities Peer/Self-Advocacy Unit exists specifically to provide support, education, outreach and training to self-advocates. Through this program people with intellectual disabilities share their experiences; become better informed about their legal, service and human rights; and learn how to protect themselves and exercise their rights.
3. Appeals to Regional Centres
Individuals who have complaints about the delivery or quality of their services may appeal, depending on whether their dispute is with the regional center or with the service provider.
The Lanterman Act sets up a formal appeal procedure that is engaged when an individual disagrees with a decision made by a regional center – affecting his or her eligibility or services. The individual’s legal guardian, conservator or representative, or in the case of a minor, the person with legal custody, can also appeal the decision of a regional center. In either case, complaints encompass decisions that deny services, stop services, change services or decrease the level of services received.
The regional center must provide written notice of a denial of or change to service. The contents of the notice are strictly mandated and include what the regional center will do, why and when they are doing it and the law, rule or policy that enables their decision. Moreover, the notice must include information regarding the appeal procedure, such as deadlines for filing, access to the regional center’s records and where to seek advocacy help.
The legislation itself dictates the deadlines for filing, as well as the means by which a consumer can have his or her services continued while the appeal process is pending. Recognizing California’s ethnic diversity and high immigration levels, the Lanterman Act also requires that all regional center notices must be in the language that the consumer or his or her authorized representative can understand. This places the onus on the consumer or the authorized representative to inform the service coordinator that notices in a language other than English are required.
The first step in the appeal process is to request a hearing. The regional center must acknowledge this request by sending a notice and providing the person who made the request with a fair hearing request form. The regional center also has the duty to help with completing the form, if required. The complainant may request an informal meeting with the regional centre, may request mediation, or may refuse these options. If the appeal goes to a hearing, it is heard before an administrative law hearing officer within 50 days of the regional center having received the request for a hearing. The hearing officer, in turn, must make a decision within ten business days of the end of the hearing. Should the complainant disagree with the hearing decision, a further appeal lies with the superior court. A Writ of Administrative Mandamus must be filed within 90 days of the initial hearing’s decision.
4. Complaints to Service Providers
Subsection 4705(a) of the Lanterman Act states that as a condition of receiving state funding, every service agency must have a written internal grievance procedure. Consequently, the starting point for addressing disagreements with a service provider is obtaining a copy of the grievance procedure. Moreover, all such service agencies must also adopt and state in writing, in English and any other language appropriate to the needs of the consumers of the particular agency, a mediation and fair hearing procedure. Copies of the procedure and the relevant provisions of the Lanterman Act must be posted on service agency’s premises.
A consumer of the agency’s services can also make a complaint to the service provider’s licensing agency. A licensing agency is charged with ensuring that licensed service providers comply with federal and state laws and regulations. Most health care service providers are licensed by the Department of Health Care Services while most community and residential care providers are licensed by the Department of Social Services. Consumers can get help with respect to their complaints to licensing agencies from an Area Board.
H. United States: Texas
In Texas, the provision of disability services falls within the purview of the Health and Human Services Commission. This commission is further organized into five state agencies, two of which are particularly relevant to this paper. The Department of Assistive and Rehabilitative Services (“DARS”) works in partnership with Texans with disabilities to assist them with independent living, improve their quality of life and help them achieve their goals. The Department of Aging and Disability Services (“DADS”), has been in operation since September 1, 2004, and administers long-term services for people who are ageing and who have cognitive and physical disabilities. DADS is also in charge of licensing and regulating service providers who deliver services within its mandate.
1. DARS Service Standards and Complaints
DARS publishes DRS Standards for Providers and places the onus on individual service providers to comply with the most recent Standards. Generally, all service providers are monitored continuously by DARS field staff. The Standards relating to the monitoring process enable periodic on-site monitoring (both scheduled and otherwise), outline typical monitoring visits and records reviews, and set out reporting guidelines regarding monitoring results. Each service provider is required to establish a grievance procedure and a Client Assistance Program. The grievance procedure must be distributed and explained to both consumers and staff of the service provider.
2. DADS Service Standards and Complaints
Any long-term care facility or agency that meets the definition of a nursing home, assisted living facility, adult day care facility, privately owned Intermediate Care Facility for Persons with Mental Retardation or Home and Community Support Services must be licensed in the State of Texas. If the agency receives funding under the Medicare and/or Medicaid programs, it also must comply with regulations under Titles XVIII and/or XIX of the Social Security Act. DADS itself is responsible for licensing such agencies, investigating complaints and provider self-reported incidents, and monitoring facilities that fall out of compliance with the regulations.
Complaints that are made by certified or licensed providers of disability services are handled by the Consumer Rights and Services office of DADS. In order to better serve its consumers, the Consumer Rights and Services office is split into two units: Consumer Rights and Complaint Intake.
The Consumer Rights Unit specializes in a number of specific types of complaints, including the Home and Community-based Services program, the Texas Home Living program, mental retardation authorities, and rights and issues affecting people with intellectual disabilities. The Complaint Intake unit is charged with providing information about long-term care services and community-based programs under DADS. It also processes complaints relating to state supported or assisted or intermediate care living facilities, adult day cares, home health agencies, hospices and personal assistance service providers. All complaints are tracked by the intake tracking system, and any investigations are conducted by Regulatory Services according to state and federal rules and regulations. Following an investigation, it is the duty of the Regulatory Services to notify the person who made the complaint of their findings. The notice can be provided in writing or by telephone.
3. Appeal Mechanisms under DARS and DADS
Since DARS and DADS both operate within the Health and Human Services Commission and are required to provide the right to a fair hearing, formal appeals in both cases will be directed to the Appeals Division of the Commission. The appeals process and the administrative hearing will be conducted by the Fair and Fraud Hearings section of the Appeals Division.
The Health and Human Services Commission follows the notice requirements and administrative hearing procedures set out in the Texas Administrative Code (“TAC”) and any other appropriate state or federal law or regulations, depending on the program in question. Section 357.11 of the TAC requires that a service provider must provide notice to the consumer when it decides to deny or reduce services or eligibility. The provision also sets out the contents of the notice, which include the right to a fair hearing, how to request an appeal, the right to representation (legal or otherwise), the availability of community legal services and any explanation of how the services may continue while the legal process is ongoing. The right to a fair hearing as well as the deadline for requesting a hearing are set out in subsection 357.3(b).
Pursuant to the TAC, Spanish interpreters are provided automatically, while every effort is made to provide interpreters of other languages, including sign language. Subsection 357.21(c) also establishes a mechanism for making a complaint with respect to the quality of interpretation service provided.
Appeal requests must be completed within 90 days of the request date. If the complainant is not satisfied with the outcome of the appeal hearing, she or he may request an administrative review of the decision. The request for review must be made within 30 days of the hearing decision. The request is forwarded to the Health and Human Services Legal Division, which designates a Health and Human Services lawyer to handle the review. The TAC outlines the administrative and judicial review process in sections 357.701-703.
Like Ontario, several of the jurisdictions surveyed employ government oversight and monitoring mechanisms to ensure quality of services. For example, Alberta’s legislation sets out robust inspection and inquiry powers by government-appointed inspectors. Under the Disability Act in Victoria service providers must comply with quality standards and the government can appoint administrators in cases where a service provider fails to meet these standards. Interestingly, all the jurisdictions surveyed employed complaint and/or appeal mechanisms as an important element of their service delivery systems. While Ontario’s Social Inclusion Act requires service agencies to establish complaints procedures, the legislation does not stipulate details about how the process should function or what principles should underpin these procedures. In contrast, many of the jurisdictions surveyed include very detailed requirements for complaints and appeals processes in their respective legislation and policies. British Columbia’s Complaint Resolution Policy and the appeal procedures under California’s Lanterman Act are two examples. This suggests that robust complaint and appeal mechanisms are an important element of enforcement in every developmental services system, including those in which government oversight and monitoring are emphasized.
Several of the jurisdictions surveyed have employed elements of a rights-based approach when designing service delivery systems and enforcement mechanisms. California’s Lanterman Act, for example, provides for rights for people with intellectual disabilities in the legislation itself. It also recognizes that people with disabilities should be able to advocate on their own behalves, and permits regional centres and Area Boards to provide self-advocacy training and peer support to those who wish to learn about their rights or make complaints about services. Several of the principles guiding the Australian Disability Rights Commissioner can be linked to a human rights-based approach, including the principles of accessibility, accountability, respect for rights and taking a person-centered approach. In British Columbia, CLBC’s Complaints Resolution Policy requires complaint procedures to be accessible and consistent with a person-centered, rights-based approach. Notably, CLBC used the UN Convention on the Rights of the Child as a reference for its policy. The use of elements of a human rights-based approach in Canadian and international jurisdictions demonstrates the utility and practical applicability of this approach for developmental services.
Of note is the fact that self-advocacy is recognized as an important element of enforcement in several of the jurisdictions surveyed. In Quebec, Users Committees’ provide peer support to assist consumers to understand complaints procedures and make complaints about services. They also assist in bringing systemic concerns to the attention of a service provider’s Board of Directors. Under California’s legislative scheme, Area Boards encourage and assist in the establishment of self-advocacy initiatives, and a number of self-advocacy organizations exist. Self-advocacy is also promoted in the UK, where service providers are legislatively required to make reasonable arrangements to assist people with disabilities to express their views, manage their own care, and support and promote their autonomy, independence and community involvement. While a number of self-advocacy organizations and initiatives exist in Ontario, few (if any) have a specific mandate to support people to understand their rights in the developmental services sector, gain advocacy skills, or bring forward complaints and concerns regarding service rights violations. The official incorporation of self-advocacy initiatives into enforcement mechanisms in Canada and abroad demonstrates that these initiatives are feasible, valuable elements of a robust developmental services system.
|First Page||Last Page|
|Table of Contents|