Bill 210 – Patients First Act

Bill 210, the Patients First Act, proposes to change significantly how Ontario’s health care system is regulated and overseen.  Most importantly, it significantly expands the mandate and powers of Local Health Integration Networks (“LHINs”).  The Bill was introduced by Minister Hoskins on June 2, 2016.

The Ontario Government established LHINs in 2006 under the Local Health System Integration Act, 2006 (“LHSIA”), creating 14 geographic LHINs throughout the Province.  The LHINs were set up to fund and oversee a finite list of “health service providers”, including hospitals, psychiatric facilities, long-term care homes, and community care access centres.  The LHINs were originally given the power to:

  • review and refuse voluntary integrations between health service providers; and
  • order integrations between health service providers.

Bill 210 proposes to give the LHINs an expanded role by adding to the list of health service providers under the LHIN’s jurisdiction.  These additional are primarily primary care health providers, such as family health teams, nurse practitioner-led clinics, aboriginal health access centres, and primary care nursing services.  Palliative care services (including hospices) and physiotherapy services in a clinic setting are also added to the list of health service providers.

The Bill puts in place the mechanics by which the LHINs will take over the community care access centres (“CCACs”).  CCACs are currently responsible for providing health and social services in home and community settings and managing the placement of individuals into long-term care homes, supportive housing programs, and chronic care and rehab beds.  This major policy change was announced in December 2015 through a discussion paper focused on changes to primary care in Ontario.  This is a sizable change in the LHINs’ mandate – they are evolving from a regulator and funder to a service provider themselves.  The transition of the CCACs to the LHINs will be seamless, as the LHINs inherit the assets, liabilities and staff of the CCACs through Ministerial order.

Bill 210 also gives the LHINs considerable new powers over the expanded list of health service providers, some of which raised eyebrows across the sector.  The most commented on new power is the ability of the LHIN to issue (provided it is “in the public interest” to do so) “operational or policy directives”, which when issued are mandatory for health service providers.  There was serious concern expressed that Bill 210 was a first step in eroding self-governance (volunteer local boards) of Ontario’s health service providers.  The Ontario Hospital Association was particularly vocal about the overly broad power given to LHINs to issue these directives, on virtually any possible subject matter, without any need for consultation or prior notice.

LHINs will also have the power to appoint an investigator over health service providers, with broad powers to investigate and report on the quality of the management of a health service provider, the quality of care provided by a health service provider, or any other matter that the LHIN considers in the public interest.  Investigators may enter premises, require the production of records, and question people on matters relevant to the investigation.  Investigators must prepare a report that will be made public.

Bill 210 also gives LHINs the power to appoint a “supervisor” over any health service provider (other than long-term care homes or hospitals).  A supervisor is appointed at the pleasure of the LHIN for an indeterminate period of time and has the exclusive right to exercise all of the powers of the health service provider’s board, its directors, officers and members or shareholders.  The Minister of Health and Long-Term Care has similar powers under the Public Hospitals Act, but the actual appointment of an investigator or supervisor must be made by Cabinet (the Lieutenant Governor in Council).  Under Bill 210, the LHIN would have this power directly, without needing to involve Cabinet.

Waiting for ONCA: Don’t put your by-laws on hold

Wondering what’s happening with ONCA (Ontario’s long-awaited Not-for-Profit Corporations Act, 2010)?

Answer:  nothing.  We’re in limbo.  Back in September, the Ontario government announced that ONCA would be further delayed, indefinitely.  The announcement reassured that the government remains committed to bringing in ONCA “at the earliest opportunity”, but it did not identify a planned (or even anticipated) proclamation date.  Instead, it promised the sector at least 24 months’ prior notice of ONCA coming into force and effect.

There have been no developments or updates since September.  Practically speaking, the earliest we can hope to see ONCA come into effect is Spring 2018.

Everyone in the not-for-profit sector is eager to take advantage of ONCA, which will bring the sector participants into the 21st century.  Yes, there will be preliminary effort and resources needed to transition under ONCA – particularly applying for Articles of Amendment (which will amend the existing Letters Patent) and updating your organization’s by-laws.  But there’s a 3-year window to do that, so no urgent action will be required on the day ONCA comes into effect.

What we are looking forward to:

  • Once a not-for-profit corporation is transitioned under ONCA, member relations will be much easier. ONCA facilitates electronic communication with members and the holding of electronic member meetings.
  • ONCA allows the Board itself to appoint directors to the Board, on an annual basis, up to a threshold number. This could be a very valuable tool, allowing the Board to supplement its skill sets on an annual basis, as its priorities and objectives change.
  • ONCA allows the Board much more flexibility in delegating decision-making down to Board committees. This needs to be managed thoughtfully, but a stronger committee structure can allow the Board to focus its attention on the most strategically challenging decisions it faces.
  • ONCA offers not-for-profit boards comfort that, should they take actions that are inadvertently or technically off-side their articles of by-laws, those actions are nevertheless valid. Business corporations have enjoyed this reassurance for decades.

Areas of ongoing concern:

  • There is unease about the provisions of ONCA that give non-voting members voting rights in specific circumstances: g., amendments to rights attached to a group of members, amalgamation, and the sale of substantially all of the corporation’s property.  The Ontario government previously proposed (via 2013’s Bill 85) that those provisions would be delayed for a further 3 years after ONCA comes into force, presumably to give the government and sector further opportunities to consider the appropriateness of this scheme for the sector.  We will be watching to see if similar amendments to ONCA are introduced and passed by the Ontario government before ONCA comes into force.

Are you waiting for ONCA to update your by-laws?  Please don’t.

In chatting with a number of our not-for-profit clients, I’ve learned that many organizations that typically review their by-laws every 3 to 5 years – a good governance practice – have put that project on hold, waiting for ONCA.  Some haven’t touched their by-laws since 2010, when ONCA was passed by the Legislature.  Those by-laws are now at least 6 years stale, and in real need of some fresh eyes.

Reviewing and refreshing your organization’s by-laws should not be put on hold.  Best governance practices evolve.  Your governance structure changes.  Your by-laws are a governance and business critical legal document.  They need nurturing and care from time to time.

Don’t by like Lucky and Pozzo (that’s a Waiting for Godot reference) – stop waiting and be proactive.  Task your board’s Governance Committee with a full by-law review, if such a review hasn’t happened in the last 3 to 5 years.

Emergency Preparedness Program for Health Care Organizations

At DDO Health Law, we understand your organization’s need to put in place a robust emergency management plan (including for some organizations, by September 30, 2015). We have developed a 12-step program to help you meet that deadline and then continue to prepare your organization in case of emergency such as fire, flood, or pandemic.  Our program reflects current best practices, including materials provided by at least one local health integration network to its health services providers. We have read all of these materials and pulled from them and other resources to determine current best practices — so that you do not need to.

DDO Health Law’s Emergency Preparedness Program offers your organization the comfort and assurance of:

  • Understanding the pillars of emergency management, including Prevention and Mitigation, Preparedness, Response, Recovery
  • Creating organization-specific emergency management plans to establish simultaneous response to fires and other emergencies
  • Effectively participating in system level preparedness and coordinating emergency response with other health service providers
  • Properly training team members in case of emergency
  • Identifying key gaps, including hazard identification and risk analysis
  • How to best communicate with your clients, their families, the public and the media

The DDO Health Law Emergency Preparedness Program provides you with:

  •  Dial-in series. You will be invited to take part in 5 phone sessions, scheduled in September. We will provide you ahead of the calls a template plan, the 12 steps you need to take to be ready, and other templates and materials. Noon sessions are:
    • Thursday, September 3
    • Friday, September 11
    • Thursday, September 17
    • Thursday, September 24
    • Final session with open Q&A on Monday, September 28
  • Training materials. You will be provided template training materials for team members, including a training slide deck you can circulate before your Board signs off, even before you schedule an in-person session to walk your team through the training.
  • Admin on call workbook. DDO Health Law previously wrote an administrator on call workbook to help health care staff deal with various kinds of crises. It is the bedrock of emergency management. We will provide you a copy of this workbook, and a draft chapter specifically on emergency preparedness. We will also provide you a copy of the updated workbook once available, for your future reference.
  • Mutual aid/assistance agreement. This template agreement is ready to be used in the event that an emergency strikes your organization, and you need to quickly put into place legal arrangements to backfill services.
  • Briefing note for your senior leadership and Board. Written by DDO Health Law, it will state that you have signed up for and participated in the DDO Health Law program, have been provided with the materials described here, and that you have undertaken that you have “filled in the blanks” and taken the steps we’ll discuss in the dial-ins. As long you have done this, we are prepared to say that your organization is compliant and that your Board should feel assured that it can sign the M-SAA by September 30, 2015 as requested by at least one LHIN. For others who do not need a September 30 signoff, the materials and briefing note still serves as a baseline for your Board and shows a measure of your due diligence.
  • Board resolution. Template Board resolutions will be provided, both for those organizations that must meet the September 30 deadline, and a more generic one for those that do not.
  • Feel free to include whomever you wish on the dial-in. The flat fee covers any team members you want to have at your table to listen in and ask questions as you work through and finalize your plan and program.

Registration is $1,000.00 plus HST ($1,130). We accept Visa or cheques.

Fax to Franca Latino at (416) 967-7120; or call her at (416) 967.7100 ext. 242 to say you will register and how you will pay.

DDO HEALTH LAW

Mary Jane Dykeman and Kate Dewhirst are partners at DDO Health Law, a boutique health law firm in Toronto. They frequently advise on risk management issues relating to health care organizations premises, reputational risk, staff issues and other crises. Mary Jane was recently part of a fire safety emergency preparedness panel at the 2015 OANHSS annual convention. Mary Jane and Kate work extensively with community providers, large and small hospitals, community support services providers, disease associations, long-term care homes, family health teams, community health centres, retirement homes and other housing and health service providers.

Feel free to email or call Mary Jane Dykeman at (416) 967-7100 ext. 225 with any questions

Recommendations from the QCIPA Review Committee

In 2014 the Ministry of Health and Long-term Care called for the formation of a committee to look at current practices in the interpretation and implementation of the Quality of Care Information Protection Act and to make recommendations for improvement. The resulting QCIPA Review Committee, which submitted its report to the Ministry in December 2014, issued 12 recommendations. These recommendations include among other things propositions related to: (i) changes in the legislation; (ii) an increased emphasis on patient involvement in investigations; and (iii) mechanisms to better utilize the lessons learned through investigations. Michael Gleeson was recently interviewed on the topic. See:

http://www.advocatedaily.com/recommendations-for-qcipa-a-good-step-forward.html

ECFAA provides hospital boards with a broad mandate for oversight of patient care

The Medical Advisory Committee (“MAC”) of a hospital has traditionally been the primary mechanism for a board of directors to ensure that a hospital is providing the appropriate quality of care to its patients. However, the Quality Committee of a hospital, as required by the Excellent Care for All Act, may be equally as important for a board. While the MAC is critically important for oversight and evaluation of the patient care provided by privileged health care providers, it has a relatively limited mandate as compared to the Quality Committee. The Quality Committee is tasked with responsibility for, and granted the tools necessary to oversee, all aspects of patient care within a hospital; not just care provided by privileged doctors, dentists, extended class nurses and midwives. Michael Gleeson was recently interviewed on the topic of board oversight of patient care. See:

http://www.advocatedaily.com/ecfaa-provides-broader-oversight-of-patient-care.html

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