October 1, 2011
Print

The Ontario government passed the Retirement Homes Act on June 8, 2010 and has now provided us with initial draft regulations for public scrutiny. This is long overdue. When I last wrote on the subject of retirement homes in 2007, I described the relative lack of oversight in supervising the conduct of business by retirement homes in Ontario.

Some retirement homes have remained completely outside the authority of government regulation by not providing any care services in the form of clinical or health services. These services would normally include some form of rehabilitative or therapeutic assistance with daily living for the residents of the home. Providing such care would have brought the retirement homes under government review as a “care home” under the Residential Tenancies Act, which establishes a basic level of protection for residents. However, by not providing such care services their activities have remained largely unregulated.

Long-term care facilities are more like hospitals and therefore, of necessity, have been subjected to more stringent regulations. The determination of access to a long-term care facility is supervised by the Community Care Access Centre, which acts as the gate keeper for admission to long-term care.

There are approximately 40,000 senior citizens in Ontario living in more than 700 retirement homes. It is this population that the new Retirement Homes Act and regulations are designated to protect.

Retirement homes serve a wide spectrum of people with significantly varying needs. While some seniors are very independent and require little or no assistance, others require regular assistance with daily living and management of their prescriptive drugs. The new Act purports to meet the needs of all residents of retirement homes. To carry out this mandate, a retirement homes regulatory authority has been created which will license homes and conduct inspections. It will investigate and enforce standards and impose penalties or revoke licenses as necessary for breaches of the regulations. It will also establish a mandatory care and safety standard with emphasis on emergency plans and infection control as well as the improved training of personnel.

The new regulations will require that residents know and understand the true cost of their care and as well as the cost of their accommodation. New reporting requirements have been put in place to deter the abuse and neglect of residents.

All in all this is a pretty tall order for a sector of the care industry which has been virtually unregulated. The new Retirement Homes Act has taken a few pages from the Long-Term Care Facilities Act, which is largely driven by health and safety concerns and this is as it should be. The new regulations deal with all aspects of personal safety and health including cleanliness, maintenance, food preparation and emergency measures. These provisions have been clearly drafted to protect the residents who are least able to look after themselves. This will, in the first instance, be less interesting to prospective residents of retirement homes who are capable of looking after themselves, but in the final home stretch these protections will come into play for the benefit of such persons as they become more vulnerable.

Retirement homes have been trying to serve residents who have increased vulnerability by adding various forms of assisted care to their services, including the management of dementia. Imposing a regulatory regime on retirement homes whose business objectives are anything but uniform is the very ambitious goal of this new legislation.

It is hoped that the new information packages that are to be provided by retirement homes to residents upon admission to the facility will clearly set out the services that the home is capable of providing, as opposed to those which the home must contract out from various service providers at additional cost to the residents. This information will also be of interest to the Community Care Access Centre, which often covers the cost of providing assistive services by contracting for them outside the retirement home. However, when the cost is supposed to be included in the services that the retirement home has contracted to provide to its residents, then the licensing authority should be able to require the retirement home to arrange for the services itself – instead of strapping the resources of the Community Care Access Centre, whose finances are already severely stretched. This would also allow the regulatory authority a review of what assistive devices the retirement home is providing and whether it has the personnel qualified to provide such assistance.

One of the real defects of the existing system is the lack of transparency. This can present a real financial challenge to a resident who is already paying $3,000 per month for rent to learn that any assistance with personal hygiene or the provision of equipment such as oxygen tanks will cost another $1,000 per month.

One way to attack the problem is to license the retirement homes by classes. For example, a class “A” home would agree to provide only room and board and recreation, which would mandate less time and attention from the licensing authority and also make it clear to prospective residents that if their health fails they will have to move to another place. On the other hand, a retirement home which agrees to provide a full range of services based on increasing need can define those services and the cost of them and train personnel to carry out the work.

Many senior citizens appreciate the security of knowing they will not have to leave their retirement home unless they require hospital care and that all of the services they will need will be provided to them on a continuing basis at the same location. Knowing what services are supposed to be provided will allow the licensing authority to focus its attention more directly upon the needs of those who are more vulnerable and thus employ its resources more productively. Retirement home owners, on the other hand, can select the level of regulation they are prepared to submit to by determining the level of care they will provide. In either case, the prospective resident would have a better idea of what they have contracted for and the licensing authority can allocate its resources appropriately.

The new regulations will be out soon and hopefully will provide a practical template for the protection of the growing number of senior citizens who will be knocking on the doors of the retirement homes across Ontario in the very near future.

John Johnson is a partner with the law firm of Nelligan O’Brien Payne LLP (www.nelligan.ca), with offices in Ottawa, Kingston, Vankleek Hill and Alexandria.

[This article was originally published in the October 2011 issue of Fifty-Five Plus Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.