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COVID-19 Update: Pandemic-Related Changes to the Long-Term Care Homes Act

Licensees, municipalities and boards of management that operate long-term care homes should be aware of the following changes made due to the COVID-19 pandemic:

1. If the resident or the resident’s substitute decision-maker requests discharge due to the pandemic, in writing, the home must permit discharge and communicate the resident’s medical care requirements. Individuals who may require readmission to a long-term care home from which they requested discharge less than three months earlier (due to the pandemic) will have less onerous requirements to meet for being accepted back into the home.

2. Revised admission criteria now apply to patients occupying beds in public hospitals during the pandemic, in order to expedite the reduction of severe capacity pressures facing the hospital. The placement coordinator will gather as much information as possible in the circumstances about the prospective applicant and will be able to select a home for the applicant (instead of the applicant selecting the home). Completion of the authorization for admission form is waived if the applicant has consented to the placement officer disclosing the applicant’s personal health information in order to process the application. The placement coordinator is permitted to inform the home orally about the applicant. The home has 5 days to make a decision regarding admission; if the home rejects the application it must include a brief reason why and must notify the placement coordinator orally but need not inform the applicant. If the home grants admission, the applicant must consent and cannot be admitted against his or her volition. If the home only has preferred accommodation available, it must make this accommodation available at the basic rate.

3. Revised requirements will now apply for processing applications for admission to long-term care home for individuals from the community. Again, the placement coordinator will be able to communicate orally to the home regarding the applicant’s possible admission. The home has 5 days to make a decision regarding admission; if the home rejects the application it must include a brief reason why and must notify the placement coordinator orally but need not inform the applicant. The applicant cannot be admitted against his or her will and must consent to the admission.

For changes #1-3 see Ontario Regulation 83/20 made under the Long-Term Care Homes Act on March 24, 2020, amending Ontario Regulation 79/10 under that Act.

4. Long-term care home employees may be redeployed within the facility or to complete different tasks, despite any restrictions set out in collective agreements. For this change please see Ontario Regulation 74/20 made under the Emergency Management and Civil Protection Act on March 21, 2020. This new requirement was followed by Directive #3 from Ontario’s Chief Medical Officer of Health (CMOH) issued on March 22, 2020 requiring that long-term care facilities, wherever possible, limit the movement of their staff between multiple sites so as to reduce the risk to residents of exposure to the virus.

5. The usual rule is that a registered nurse (RN) who is both an employee of the home and on the regular nursing staff of the home must be on duty and present at the home at all times, subject to requirements in the regulation. If the pandemic prevents that RN from attending on site, and the home’s required back-up plan for mitigating such circumstance cannot be met, the home may instead rely upon:

a. an RN who is contracted to the home directly or through an employment agency;

b. a registered practical nurse who is an employee of the home or contracted to the home directly or through an employment agency, as long as the Director of Nursing and Personal Care or an RN is available for consultation.

c. a member of a regulated health profession who is both a staff member and an employee of the home, who has a set of skills that, in the reasonable opinion of the licensee, would allow that professional to provide care to a resident, as long as the Director of Nursing and Personal Care or an RN is available for consultation.

6. The usual number of hours that the Director of Nursing and Personal Care must provide on-site at the home does not apply during the pandemic.

7. Finally, there are modified training and screening requirements for homes hiring new staff or accepting new volunteers during the pandemic.

Changes #5-7 were made by Ontario Regulation 72/20 under the Long -Term Care Homes Act on March 20, 2020 and amend Ontario Regulation 79/10 under that Act. All of these changes are incorporated into the Long Term Care Homes Act regulation and are available on the government of Ontario’s e-laws website.

We extend our heartfelt thanks to all staff working in healthcare, supporting health care delivery and in essential retail and services. Stay safe. Please contact spalter@ddohealthlaw.com with any inquiries.