The Long-Term Care Homes Act, 2007 (the “Act”) and Ontario Regulation 79/10 (General) (the “Regulation”) came into force on July 1, 2010. The Act and the Regulation set out a comprehensive legislative scheme for the operation and management of LTC homes. The Act is complex and quite prescriptive. Certain aspects of the new regime, for example, the new inspection and enforcement process, have had a staged implementation.

As it becomes fully operational, it is reasonable to expect that there may be unanticipated consequences and challenges associated with the Act. It will take some time for LTC homes, residents, families, associations, unions, health professionals, the Ontario Ministry of Health and Long-Term Care (“the Ministry”) and other stakeholders to fully assess the impact of the regulatory changes.

One such challenge for small hospitals that also operate a LTC home relates to the staffing requirements under section 8(3) of the Act. This provision requires that at least one registered nurse who is both an employee of the LTC home and a member of the regular nursing staff be on duty and present in the home at all times. This has been interpreted by the Ministry as requiring that the facility must have a dedicated registered nurse on duty who is restricted to the LTC unit at all times.

For many small hospitals that operate LTC homes, there is a need to share nursing resources between the hospital and the LTC home, particularly during evening and weekend shifts. By utilizing a shared staffing model, a facility can potentially optimize the care provided to residents and create efficiencies that will enable the home to exceed the staffing levels set by the Act, as well as quality of care and safety requirements.

The Regulation provided an exemption to the RN staffing requirements for LTC homes with Elderly Capital Assistance Program (EldCap) beds, which applied to a number of small northern hospitals. This exemption was restricted to homes with EldCap beds.

Amendments to the Regulation

On December 17, 2012, the Regulation was amended to address the requirement for small hospitals that operate a LTC home to have a dedicated RN physically present in the LTC unit at all times. The exemption applies to section 8(3) of the Act, as well as section 8(4) which provides that during the hours that an Administrator or Director of Nursing works in that capacity, he or she shall not be considered to be an RN on duty and present in the LTC home. This enables the LTC home to rely upon these nursing resources as well to meet the requirements. In order to be exempt, the following conditions apply:

  • the home has a licensed bed capacity of 39 beds or fewer
  • the home adjoins a hospital under the Public Hospitals Act; and
  • an RN is on duty and present anywhere on the site, including the hospital

The exemption to the RN staffing requirements for LTC homes with EldCap beds was also amended. A LTC home with EldCap beds is now exempt from the requirements under section 8(3) and 8(4) of the Act, as long as an RN is on duty and present anywhere on the site, including the site of the adjoining long-term care home or the adjoining hospital (emphasis added).

Other Proposed Amendments to the Regulation

The Ministry has introduced a number of other of regulatory amendments which are subject to a consultation process. The proposed changes to the Regulation include provisions relating to qualifications for staff in LTC homes (grandfathering of certain positions), admission to convalescent care programs, admission to and discharge from specialized units and changes related to the reporting of critical incidents.

As we move forward with full implementation of the Act, there are many opportunities for LTC homes, associations and other stakeholders to be active participants, to engage in constructive dialogue and inform the process. Under the Act, there is also a new inspection and enforcement process, which includes the opportunity to request a review of an inspector’s order by the Director under the Act. Miller Thomson’s Health Industry Group is pleased to assist health industry clients to understand and comply with their obligations under the Act and to address any issues that may arise.