Judith Wahl
Advocacy Centre for the Elderly
Advocacy Centre for the Elderly
2013
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Community Legal Clinic in Ontario
In operation since 1984
Half of legal practice is Health Issues
Advocacy
Cross Provincial Experience
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Eligibility
◦ Higher level of care needs to be eligible for publicly
funded and regulated care services
◦ What was eligible, no longer eligible or shifts within
funding year
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Access
◦ Geographic Access across Province
◦ Waiting Lists without real alternatives
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Problem of “Good Law, Bad Practice” Access
– rights to get publicly funded/ regulated
health services
◦ The hospital discharge issues
 Pressure to take first available bed vs. rights of choice
 When you can apply for LTC and where you need to
wait for admission ( Wait at Home/ Home First)
◦ Fees charging practices (charges for palliative care,
psychiatric care, ALC when not yet ALC)
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The embedding of private pay care in the
Retirement Home system
◦ A parallel LTC system to publicly regulated/ funded
LTC instead of a continuum
 May offer and provide same care levels and types as
LTC but not covered by health dollars
 Not subject to same care oversight
◦ The “Private” regulatory structure
 Set up in legislation but private structure
 Operational costs of regulatory body directly from
users via licensees
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Increase in requirements for Eligibility by area
or at times of year
Charges that not comply with OHIP- while in
hospital and to motivate to accept discharge
options
Hospital policies control process not the
legislation
Pressure to take first available Bed anywhere
despite effect on patient
Advocacy Centre for the Elderly
2013
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Pressure to take accommodation in
Retirement Homes (Rental Accommodation
with Private Pay Care which may be at levels
equivalent to LTC which health services are
publicly funded)
Lack of LTC beds/ homecare
Dissonance in transitions
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Senior in Hospital for acute care episode
Care progressing and discharge now possible soon
Ontario – Hospital has discharge staff however
Community Care Access Centre (CCAC) (publicly
regulated and funded coordinating/case management
agency) responsible for access and eligibility to
publicly funded home care and Long Term Care and
info on other community resources (care and other
services) and other forms of accommodation ( info on
Retirement homes, supportive care, respite care etc)
Seniors Rights within that process?
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When Acute care, Palliative Care, Psychiatric Care – no
individual charge for care (public health coverage)
Physician can discharge patient
If discharged, patient expected to leave within 24 hours
However, if patient needs care, although not acute,
cannot be “abandoned”
If needs long term care and cannot return home with
supports, then can remain at hospital pending transfer
(Alternative Level of Care)
When ALC, can be charged up to amount permitted
under Health Insurance legislation which is $55.00 and
change. That rate is also subject to a rate reduction under
the Health Insurance Act
If person is not ALC ( so person trying to stay like an over
holding guest when not need LTC or hospital care) and
discharged, hospital may charge a much higher per diem
of THEIR choice (person then not under OHIP) if person
refuses to leave hospital (the issue is then WHEN is a
person ALC?)
Advocacy Centre for the Elderly 2013
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Attending physician must designate patient
as requiring chronic care and being more or
less permanently resident in a hospital or
other institution
Only applies to patients who are presently
in certain types of public hospitals as set
out in the regulations
Cannot charge a patient who received
services under the Mental Health Act- i.e. at
any time was a mental health patient – even
if are now ALC (s. 46 of the Health
Insurance Act)
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As of July 1, 2009, all acute and post-acute
hospitals were required to use a standardized
Provincial ALC Definition
Designation as ALC does not mean person
can be charged
Can only be charged copayment if meet
requirements of s. 10 in Reg. 552 to the
Health Insurance Act
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If returning home cannot charge ALC rate
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Maximum amount can be charged pursuant
to regulations under Health Insurance Act is
$55.04.
Rate reductions are available – for both low
income as well as spouses still in community.
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Minister of Health & Long-Term Care Deb
Matthews has stated that persons in hospital have
choice of LTCHs
Cannot charge anything other than Health
Insurance Act when person is waiting for one of the
beds on their list
Memorandum from Ruth Hawkins, ADM of Health
dated February 2011 confirms this
Memorandum of Catherine Brown, ADM of Health
dated January 2013 confirms rights of patients to
apply to long-term care and wait in hospital
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Hospitals may attempt to control admission process
even though CCAC responsible for admission
Hospital cannot have discharge policies that are
contrary to the law
For example:
◦ Choice - Cannot require certain number of choices or
number of choices from “short lists”
◦ Choice - Cannot require patients to accept “available beds”
◦ Choice - Cannot prohibit patients from making applications
to any LTCH of choice even if waiting list is lengthy Process
– When you can apply to LTC - Cannot prevent patients
from applying to LTCHs from hospital
◦ Processs – Where you wait - Cannot require persons to go
home or to a retirement home to “wait”
◦ Charges - Cannot be threatened with “discharge” and
charges of a “daily rate” which often run from $500 $1500 per day
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Authority of CCAC vs. Hospital for Discharge
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Authority for CHOICE
◦ Provides that the CCAC (Placement Coordinator) is
responsible for applications to LTC homes NOT the
hospital personnel
◦ CCAC must determine eligibility for LTC home admission
◦ CCAC must assist person to apply to LTC homes
◦ Confirms requirement for CHOICE of homes is that of the
person
◦ Can choose maximum of 5 homes (except for crisis)
◦ Person cannot be required to go to LTC home unless he or
she consents
◦ Consent must be INFORMED and voluntary and not based
on misrepresentation
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LTCHA s. 40 & 41 and Reg. 79/10 s. 153
designate CCAC employees as placement
coordinators
Most of the process unless otherwise set out
in the legislation must be performed by CCAC
This is reason why Hospital Discharge staff
cannot control process and why hospitals
cannot create policies and practice that
override rights of patient in discharge
process
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People cannot be told that can only apply for LTC
after being discharged from hospital when out of
hospital
CAN encourage people to return home with home
care if person’s care needs could be managed at
home with sufficient home care
Can talk with people about alternatives to long
term care placement – but it they are eligible for
long-term care cannot REQUIRE them to go to an
alternative
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While retirement homes may be considered – they
are not the equivalent of LTCHs and cannot be
used as such (see Nineteenth Annual Report of the
Geriatric and Long-term Care Review Committee to
the Chief Coroner for the Province of Ontario –
September 2009, page 35)
Cannot set arbitrary “rules” about where and when
applications can be made that takes away right of
choice of when to apply
People have right to apply (no pre screening of
eligibility) and have right of review before a
Tribunal if found not eligible
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Information about alternative services
Responsibility to pay and maximum
amounts that may be charged
Rate reductions that are available and
application requirements
Approximate length of waiting lists
Vacancies
How to obtain information, including
compliance reports, from the Ministry of
Health and Long-Term Care
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Where the person/SDM wishes the CCAC shall
assist the applicant in selecting homes
Shall consider the applicant’s preferences relating
to admission, based on ethnic, religious, spiritual,
linguistic, familial and cultural factors
Application can only be made with the consent of
the applicant – therefore homes that have not been
applied to cannot be “offered”
Applicants may choose any home in the province of
Ontario and the CCAC shall work with the CCAC in
that area regarding the application
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Some CCACs/Hospitals advise clients to apply for
preferred accommodation (private rooms – at
higher rate – not available for rate reductions) as it
has shorter wait lists – and then can transfer after 1
year. UNTRUE.
Applications for transfer can be made on the DAY
OF ADMISSION to the long-term care home;
HOWEVER, actual transfer may take years due to
alternate waiting list regulation
Homes CANNOT “income test” or request income
information and CANNOT refuse based on issues of
income
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Applicant can only apply for a maximum of
5 LTCHs (except for crisis)
Can apply to interim short stay, which are
not included in the 5 maximum
May, but is not required, to add homes if
they are on crisis waiting list
Can only be put on waiting list if there is
valid consent unless it is crisis under HCCA
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As with other types of consent – consent to release
personal health information must be voluntary,
knowledgeable, relate to the information, and not
obtained through deception or coercion (PHIPA s.
18)
Can choice of home be released without specific
consent to CCAC to do so?
PHIPA allows information to be released if it for the
provision of health care
Arguably the choice of facilities is not
Additionally – person/SDM can prohibit this
information being released to the hospital
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If person found to be ineligible for LTC by
CCAC – if feel incorrect – can apply to
HSARB for review
Home must accept eligible applicant unless
meets one of 2 criteria:
◦ Home lacks the physical facilities necessary to
meet applicant’s care needs
◦ Staff of home lack the nursing expertise
necessary to meet the applicant’s care
requirements
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Home has five business days to provide
notification that approval is being withheld
unless requires more information – once that
information is received – again has 5 business
days
If withholding approval – must provide
written notice
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Must notify Applicant, Director and CCAC in
writing that approval is withheld
Notice must include the following:
◦ Ground(s) for withholding approval
◦ Detailed explanation of supporting facts as they
relate both to home and applicants condition and
requirements for care
◦ Explanation of how the supporting facts justify
the decision to withhold approval
◦ Contact information for the Director
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Retirement homes are TENANCIES – rental
accommodation where a landlord may also
offer care services of different types
Retirement homes are NOT “private” long
term care homes and are not health care
facilities
If a person needs and is eligible for LTC,
nothing requires that person to go to a
retirement home pending admission or
instead of admission into a LTC home
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Persons eligible for LTC admission cannot be
“required” to go into a retirement home pending
transfer – a person may CHOOSE to do that if
willing to private pay for health care and if they
believe that retirement homes will meet care
needs. These are not “Authorized” beds
IF a retirement homes is AUTHORIZED by the
MOHLTC to offer LTC beds as a transition home,
then those retirement homes will be considered the
same as LTC beds
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The retirement home beds must have specific
authorization by MOHLTC, those beds then come
under inspection and oversight by MOHLTC and are
treated as if beds in a LTC Home under LTCH Act,
and consent would be necessary from person
before admission as is required to admission in
ANY other LTC home bed
Authorization of beds for use in this manner must
be obtained from MOHLTC BEFORE any such beds
used in this manner – Charges in authorized beds
are the same as in any LTCH bed and health care is
funded and is not private pay
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Retirement Home accommodation in
Ontario has been regulated (since 1995)
and will continue to be regulated as “care
homes” under the Residential Tenancies Act
Retirement Homes Act ALSO regulates those
retirement homes that are occupied by 6 or
more people (65 plus) but are STILL
tenancies
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Retirement homes may to provide ANY level of care, including
the same care that is provided in long term care homes
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Retirement Home tenants (called “residents” in the RHA) will
private pay for their care
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Care services in retirement homes are NOT covered by the
provincial health insurance even if the care level is the same
as in long term care homes
In LONG TERM CARE HOMES, residents pay only for room and
board as the provincial government pays the LTC homes for
the health care that is provided
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BASIC INFORMATION - getting info on basic
right
◦ People DON’T KNOW their rights in the health
system and
◦ Who can they trust to get the RIGHT and legally
correct info?
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SYSTEM PRESSURES - Pressures to be
discharged/ transferred / moved somewhere
else
ELIGIBILITY -Changing Eligibility and the
challenge of regulating eligibility
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CHARGES – What are we required to pay for
and what don’t we pay for?
◦ Charges for ALC
◦ Charges for Health Insured Care ( so when is a
person designated as Palliative care? )
◦ How Charges are calculated – lack of transparency
and oversight
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Charges in Retirement Homes for SAME care
as provided in LTC homes – Two Tier and who
is raising this as an issue?