On September 21, 2022, the main provisions of the More Beds, Better Care Act ("Bill 7") and supporting regulations came into effect. Bill 7 amends the Fixing Long-Term Care Act (the "Long-Term Care Act") and the Health Care Consent Act ("HCA") to facilitate the transition of patients who require an "alternate level of care" from public hospitals to long-term care homes.

Bill 7 permits placement co-ordinators and long-term care home operators to admit individuals to long-term care without their informed consent. Related amendments mandate that hospitals charge a $400 daily fee to patients who are discharged but choose to remain in hospital.

Bill 7 is one step in the Ontario government's broader Plan to Stay Open: Health System Stability and Recovery. The Plan aims to, among other things, preserve hospital capacity and ensure that the right care is provided in the right place.

This bulletin summarizes key changes introduced by Bill 7 and related regulations.

The Pre-Bill 7 Framework for Transitioning from Hospital to Long-Term Care

The legal framework that supports a patient's transition from hospital to long-term care is set out in a number of statutes, including the Long-Term Care Act, the HCA, the Health Insurance Act and the Public Hospitals Act.

Patients who occupy a bed in a hospital but do not require the intensity of resources or services provided in a hospital care setting are given the clinical designation of requiring an "alternate level of care" ("ALC"). Under the Long-Term Care Act, ALC patients who are eligible for long-term care may apply to a placement co-ordinator for admission to the home(s) of their choosing.

Once a patient receives a valid offer of admission, they are discharged from the hospital when the long-term care bed becomes available and transferred to the long-term care home – with their consent or the consent of their substitute decision-maker. The Long-Term Care Act prescribes elements required for consent: it must relate to the admission, be informed, be voluntary and not be obtained through misrepresentations or fraud.

Generally, patients in hospitals awaiting long-term care placements remain eligible for insured in-patient services until they receive an offer of admission from the long-term care home of their choosing. Prior to Bill 7, if a patient refused a valid offer of admission from their selected long-term care home and chose to remain in hospital, the hospital could charge the patient an unregulated uninsured rate to remain in hospital, but the Long-Term Care Act did not permit patients to be admitted to long-term care without their consent or the consent of their substitute decision-maker.

The New Framework for Transitioning from Hospital to Long-Term Care

Bill 7 supplements the legislative framework for transitioning ALC patients from a hospital care setting to long-term care by superseding the consent requirements that are set out in the Long-Term Care Act.

New section 60.1, added to the Long-Term Care Act by Bill 7, applies to a person who (a) occupies a bed in a hospital under the Public Hospitals Act; and (b) has been designated by an attending clinician in the hospital as requiring an ALC because, in the clinician's opinion, the person does not require the intensity of resources or services provided in the hospital care setting, such person being referred to in the new provisions as an "ALC patient".

Bill 7 authorizes long-term care placement co-ordinators, with or without a request from an attending physician, to take the following actions in respect of an ALC patient without their consent (or the consent of their substitute-decision maker), provided that reasonable efforts have been made to obtain consent:

  • determine the patient's eligibility for admission to a long-term care home;
  • select a long-term care home or homes for the patient;
  • provide a long-term care home with the assessments and information set out in the regulations, which may include the patient's personal health information;
  • authorize the patient's admission to a long-term care home; or
  • transfer responsibility for the placement of the patient to another placement co-ordinator who may carry out the above actions with respect to the patient.

Bill 7 and the supporting regulatory amendments permit long-term care placement co-ordinators (as well as public hospitals, home and community care services providers, primary health care providers, community mental health and addition services providers, and service agencies under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act) to collect, use and disclose the patient's personal health information, without their consent, in order to assess the patient's eligibility for long-term care or admit them to a home.

Bill 7 requires long-term care home operators to take the following actions:

  • review the assessments and information provided by the placement co-ordinator in respect of the patient;
  • approve the patient for admission as a resident of the home after reviewing the assessments and information provided by the placement co-ordinator, unless a prescribed condition for not approving the admission is met (e.g., the home lacks the physical facilities necessary to meet the patient's care requirements or the staff lack the nursing expertise necessary to meet the patient's care requirements); and
  • admit the patient as a resident of the home, once a bed becomes available and after the placement co-ordinator has both determined the patient's eligibility for admission to the home and authorized their admission to the home.

If reasonable efforts are made to obtain an ALC patient's consent to admit them to a long-term care home, but consent is not obtained, the existing requirements and procedures for admission to long-term care under the Long-Term Care Act will not apply. Instead, the requirements and procedures in new regulations made to support Bill 7 will apply. If at any stage of the admissions process the patient does provide their consent, the applicable requirements and procedures under the pre-Bill 7 framework set out in Long-Term Care Act will then apply.

Bill 7 does not authorize any person to restrain an ALC patient in order to admit them to long-term care (or otherwise carry out any of the actions listed above), nor does it change the long-term care admissions processes for consenting patients.

Regulations to Support the New Framework

Ontario Regulation 484/22, which came into force on September 21, 2021, amends the general regulation under the Long-Term Care Act (Ontario Regulation 246/22) to prescribe certain procedures and additional requirements with respect to the new framework for ALC patients, including the following:

  • When determining an ALC patient's eligibility for admission to a long-term care home, placement co-ordinators must:
  • meet with the patient and provide them with information about the long-term care home placement process and the implications of refusing to provide their consent to a placement;
  • provide the patient with information about payment for accommodation in a long-term care home and how they may apply for a reduction in fees; and
  • consider the patient's physical and mental health, requirements for medical treatment and health care, functional capacity, requirements for personal care, and behaviour. A co-ordinator may request an assessment of these matters be conducted by a physician, registered nurse or nurse practitioner at the hospital. If a patient or their substitute decision-maker does not consent to the assessment, the person conducting the assessment is required to base their assessment solely on a review of existing hospital records relating to that patient. In addition to this assessment, the co-ordinator may consult with various care providers to the ALC patient and collect certain personal health information about the ALC patient.
  • If a placement co-ordinator determines that an ALC patient is eligible for admission to a long-term care home, the placement co-ordinator must provide the patient or their substitute decision-maker with information about waiting lists and approximate times to admission for relevant long-term care homes; vacancies in relevant long-term care homes; and how to obtain information about long-term care homes.
  • If the ALC patient or their substitute decision-maker refuses to submit an application for admission, the placement co-ordinator will make a selection. When selecting a long-term care home for an ALC patient, placement co-ordinators must consider:
  • the patient's condition and circumstances;
  • the class of accommodation requested by the patient (if any); and
  • the proximity of the home, which must be within a 70 kilometer radius from the patient's preferred location or 150 kilometre radius if the patient's preferred location is in northern Ontario, unless there are no homes or limited vacancies in homes in that area.

The Regulations also provide that ALC patients who are admitted to a long-term care home without their consent under the new framework may remain on waitlists for up to five of their preferred homes, including waitlists for reunification priority access beds (if applicable). The changes stemming from Bill 7 do not affect existing priority waitlists for long-term care homes.

Hospital Fees for ALC Patients

The Hospital Management Regulation (R.R.O. 1990, Regulation 965) under the Public Hospitals Act was amended to support Bill 7 and now provides that if a discharged patient remains in the hospital for more than 24 hours after the date set out in the discharge order, the hospital must charge the patient a fee of $400 for every day that the patient remains in the hospital following the expiry of that 24-hour period.

This amendment is intended to settle the ambiguity around the uninsured rates that hospitals may charge patients who refuse a valid offer of admission from their selected long-term care home and chooses to remain in hospital. The amendment will come into force on November 20, 2022.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.