Canada: Newly Enforced Sections Of The Retirement Homes Act And How They Will Impact Your Operations

On January 1, 2014, additional sections of the Retirement Homes Act, 2010 ("RHA") came into force, with the intent of providing further safeguards to senior consumers in the retirement home sector. These changes will have a significant impact on the practice of licensees moving forward by way of enhanced administrative obligations, and interactions with the Retirement Homes Regulatory Authority (RHRA). The most notable sections that came into force January 1, 2014 address the following:

  • Police-conducted screening of staff members and volunteers;
  • Establishment of a formal complaints  process;
  • Plan of Care Approval by a member of the College of Physicians and Surgeons of Ontario (CPSO) or College of Nurses of Ontario (CNO);
  • Whistleblowing Inspections; and
  • Extra Expense Insurance.

Police-conducted screening of staff members and volunteers

Licensees are now required to obtain background screening (current to within 6 months of a person's application) from a police agency before hiring new staff members and accepting new volunteers. The RHA requires a vulnerable sector screening which is more onerous than simply obtaining a criminal record check.

Licensees are also required to obtain a signed declaration from any staff member or volunteer who applies to work, or already works, in the facility, disclosing any charges, orders, convictions, or other outcome against the individual under the Criminal Code, ControlledDrugs and Substances Act, and/or the FoodandDrugs Act. This includes any Order of a judge or a justice of a peace with respect to any peace bond, probation order, prohibition order under the aforementioned statutes. Staff members or volunteers must also declare every restraining order made against them under the Family LawAct or Children'sLaw Reform Act.

All staff members and volunteers are now personally obligated to immediately provide a declaration at any time they become aware that a charge has been laid or an order has been made against them, a conviction has been entered against them by the Attorney General or a charge has been disposed of.

However, certain categories of persons are exempt from the police background check and ongoing declaration requirements, such as:

  • Persons under 18 years;
  • Members of the CPSO and CNO; and
  • Contract employees or persons working pursuant to a third party contract that do not provide direct care to residents.

Establishment of a formal complaints process

As of January 1, 2014, the newly empowered Retirement Homes Regulatory Authority ("the RHRA") is required by law to review all complaints received from the public regarding alleged contravention(s) of the RHA. The RHA establishes the following basic framework:

  • Complaints are to be reviewed by the Registrar in a prompt manner;
  • The Registrar may request the licensee to provide information that is relevant to the complaint, as long as the request is in writing and sets out nature of complaint;
  • If a licensee receives such a request, it must provide the requested information by the specified deadline;
  • Once a complaint is received the Registrar may take one or more of the following actions:
    • Make inquiries relating to the complaint;
    • Conduct an inspection of the retirement home and/or any place that is operated in conjunction with the retirement home (from which services are provided to a retirement home);
    • Attempt to mediate or resolve a complaint;
    • Provide information to or attempt to educate the complainant, the licensee and/or other persons;
    • Give the licensee a written warning that if certain action continues, it may take action against the licensee;
    • Issue an order against a licensee;
    • Take no further action (in which case the complainant is entitled to request review by a Complaints Review officer in writing within 60 days of being notified of the Registrar's decision to take no further action).
  • The Complaints Review officer has the ability to:
    • Take no further action where it is determined the Registrar's consideration and investigation was reasonable; or
    • Refer the complaint back to the Registrar for reconsideration with a recommendation that the Registrar take further action where it is determined that the Registrar's ultimate decision was unreasonable.
  • However, the Registrar must conduct an immediate inspection of a retirement home if it receives information of:
    • Improper or incompetent treatment or care of a resident that resulted in harm or risk of harm to a resident;
    • Abuse of a resident by anyone or neglect of a resident by the licensee or staff of the retirement home that resulted in risk of harm to the resident;
    • Contravention of a requirement of the RHA, or other unlawful conduct that resulted in harm or a risk of harm to a resident;
    • Any other matter that may be specified in the RHA.

Thus, the legislation provides the Registrar discretion in how the complaint is handled after it is reviewed, unless the complaint contains the kind of information outlined in the last four bullets directly above. It remains to be seen whether and in what circumstances the Registrar may exercise discretion after reviewing a complaint to not take any of the further steps provided by the RHA and decide to take no further action.

Plan of Care Approval by a regulated member of the CPSO or CNO

A resident's plan of care must now not only be approved by the resident or substitute decision maker, but also by a member of the College of Physicians and Surgeons (CPSO) or College of Nurses of Ontario (CNO) or a person acting under the supervision of one of these regulated health professionals.

Whistleblowing Inspections

As of January 1, 2014 the Registrar may conduct an inspection of a retirement home if it receives a complaint from the public regarding any alleged retaliation, reprisal or threats of such actions against a person for providing evidence in a proceeding, including one under the RHAor for disclosing information to the Registrar or investigator conducting an investigation under the umbrella of the RHA and RHRA.

Extra Expense Insurance

All licensees must now ensure that they maintain extra expense insurance coverage from an authorized insurance provider. The policy must cover the costs of providing reasonable accommodation and care for a minimum of 120 days at another facility, if as a consequence of loss or damage to the retirement home, the licensee can no longer provide or safely provide the normal accommodation to its residents and the loss or damage is in a form for which insurance coverage is reasonably available.

Conclusion

Some of the newest sections of the RHA place additional administrative obligations on licensees by way of requiring certain approvals of a resident's plan of care, vulnerable sector screening in relation to new staff and volunteers and extra expense insurance. The other sections relating to the establishment of a formal complaints process and whistleblowing inspections highlight additional ways that the RHRA might come knocking on your community's door to conduct an inspection and/or require the provision of certain information. Regardless of the specific requirements placed on licensees and/or RHRA powers contained in these new sections, it is clear that the common thread is a focus on the protection of residents.

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