Long-Term Care Home System Strained but Not Broken

Co-authored by Nareh Ghalustians

The Report on the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Report”) was released on July 31, 2019, with 91 recommendations (the “Recommendations”) for improving the safety and security of residents in Ontario’s long-term care system, and for Ontarians receiving home care services. The Report was released following the Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (the “Inquiry”). The commission to spearhead this Inquiry was established on August 1, 2017, after Elizabeth Wettlaufer pleaded guilty to and was convicted of eight counts of first-degree murder, four counts of attempted murder, and two counts of aggravated assault offences that she committed while working as a registered nurse in various long-term care homes in southwestern Ontario and as a nurse providing home care services in private homes. She has been sentenced to life imprisonment with no parole eligibility for 25 years.

This article reviews Volume 1 of the Report and identifies the mandate of the Inquiry and its key findings and summarizes the Recommendations affecting long-term care homes in Ontario. We anticipate that there will be broader implications across the entire health sector arising from these Recommendations.

Background

The Report was dedicated to the victims and their loved ones. It notes that the regulatory regime that governs the system is not broken and imposes clear standards for long-term care homes, and a rigorous inspection regime to enforce those standards that can be built upon and improved. In that vein, the Report requires the Ministry of Health and Long-Term Care (the “Ministry”)[1] to issue a report by July 31, 2020, describing the steps it has taken to implement the Recommendations coming out of the Report, and to table that report in the Ontario Legislature. In a recent news release, the Ministry stated its intention to meet this deadline.

Mandate

The Report notes that the mandate of the Inquiry was to inquire into the events that led to the offences, circumstances, and contributing factors, and to make recommendations on how to avoid similar tragedies in the long-term care system. The mandate was not to conduct a general review of the long-term care system.

Key Findings

The Report highlights three main findings:

  1. The offences would not have been discovered if Elizabeth Wettlaufer had not confessed.
  2. The offences resulted from systemic vulnerabilities.
  3. The long-term care system is strained, but not broken.

Recommendations

The Report was clear that change is required on a systemic level.

Training

The Report recommends that long-term care home licensees must provide training to administrators and directors of nursing on hiring and discipline of staff, conducting workplace investigations, and on reporting obligations to the Ministry and the College of Nurses of Ontario (the “College”). Recommendation #3 suggests that this training be provided by the Ministry, the College, and the Office of the Chief Coroner/Ontario Forensic Pathology Service.

The Report also recommended that medical directors, attending physicians, and nurse practitioners of long-term care homes receive comprehensive, ongoing training on preventing resident abuse and neglect, a requirement from which they are currently exempted, unlike other staff such as registered nurses.

The Report also adds a specific Recommendation that Medical Directors complete the Ontario Long-Term Care Clinician’s Medical Director course within two years of assuming the role of Medical Director in a long-term care home.

Furthermore, the Report recommends additional training for staff, visitors, and residents about their obligations to report to the Ministry (not just to the long-term care home) regarding suspected abuse and neglect of residents that results in a risk of harm to the resident (see s. 24(1) of the Long-Term Care Homes Act, 2007 (the “Act”)).

Summary of Other Key Recommendations

  • Handling of Medication. Recommendations were made for improving the long-term care home’s medication administration and medication incident reporting systems, and how to use the recommended redesigned institutional Patient Death Record, once it is created.

 

    • Improved medication management in long-term care homes is recommended through a three-pronged approach directed at the Ministry creating new policies, improving the annual quality inspection process, and by long-term care homes modifying and improving the security of rooms in which medications are stored and using technology to support medication management.

 

    • Recommendations are made to the Ministry to permit long-term care homes to use the additional nursing and personal care funding to purchase or upgrade integrated automated medication dispensing cabinets and install cameras and/or glass doors in medication rooms.

 

    • It is recommended that long-term care homes improve their medication incident analyses (required by the Act) and treat the use of glucagon as a medication incident. Medication incidents, under the Act, would have to be reported and reviewed at least quarterly by the long-term care home’s medication management interdisciplinary team, composed of the Medical Director, administrator, director of nursing and personal care, and the pharmacy service provider. More details regarding medication management can be found in Recommendations #74-84 of the Report.

 

    • Recommendation #19 recommends that the Ministry expand the nursing and personal care funding envelope and permit long-term care homes to use these funds to pay for a broader spectrum of staff including porters, pharmacists, and pharmacy technicians.

 

    • Recommendation #76 goes further to recommend that long-term care homes use this funding to engage a staff pharmacist and/or pharmacy technician. The Report also recommends that the licensees use this new funding for training, education, and professional development of all staff, including the backfilling of positions for staff attending training. Further, the Report recommends that licensees be permitted to use the expanded or new funds for annual membership fees in AdvantageOntario and the Ontario Long-Term Care Association.

 

  • Agency Nurses, Service Providers, and the Role of the Ministry. Specific Recommendations are made regarding long-term care homes’ use of agency nurses (Recommendations #11-13); home care service provider obligations (Recommendations #14-18); and the role of the Ministry (Recommendations #19-31).

 

  • LHINS/Ontario Health, College, Coroner, and Ministry Recommendations. Recommendations #32-39 are directed toward Local Health Integration Networks (“LHINs”) and providers and coordinators of home care services, and thereby to Ontario Health, once it takes over this role. One of the Recommendations is for the LHINs to adopt a common electronic events reporting system and to train staff and service providers on its use. Recommendations #40-49 are directed to the College and Recommendations #50-61 to the Office of the Chief Coroner/Ontario Forensic Pathology Service. Recommendations #62-63 suggest an expanded leadership role for the Ministry and improved communication with the LHINs/Ontario Health.

 

  • Health Care Serial Killer Phenomenon. Building awareness of the “healthcare serial killer” phenomenon is addressed in Recommendations #64-73 (a phenomenon used to describe murders committed by individuals working as health care professionals). The Inquiry heard evidence that 90 healthcare serial killers have been convicted in the USA, Canada, and Western Europe since 1970, but the phenomenon has been documented since the 1800s.

 

  • Number of Registered Staff. It is recommended that the Ministry conduct a study to determine the adequate levels of registered staff in the long-term care homes on each of the day, evening, and night shifts, table the study in the legislature by July 31, 2020, and increase funding accordingly (Recommendation #85).

 

  • Detecting Deaths. Suggestions for improving the detection of intentionally caused resident deaths are covered in Recommendations #86-91.

Conclusion

The Report highlights the dedication and commitment of individuals working in the long-term care system under pressure and with limited resources. The Report highlights improvements that were implemented by stakeholders during the Inquiry and prior to the release of this Report, including the formation of a working group on medication management systems in long-term care homes, and the increase in the amount of information available from the College about nurses’ employment history, and stakeholder-led initiatives that predated the Inquiry, such as a medication safety pilot project and the clinical support tools program.

The Report expresses hope that the Inquiry and the Report can rebuild Ontarians’ shattered trust in the long-term care system.

[1] The Government of Ontario recently divided this Ministry into two, appointing a separate Minister of Long-Term Care in addition to what is now called the Ministry of Health. This blog post uses the language of the Report, which references both Ministries jointly.

Bill 74 – What Does it Really Mean?

This blog delves into what Bill 74 will really mean for the Ontario health care system – what exactly is changing? What powers will the Minister have, what powers will the super agency (Ontario Health, or OH) have, and what if any powers will remain with the LHINs? What are integrated care delivery systems (ICDSs) and how do they fit into the scheme of things?

Specifically, this blog answers the following questions:

  • What is Ontario Health?
  • How are the rules for OH different than the rules for LHINs, CCO, TGLN, etc.?
  • What is happening to the LHINs under Bill 74?
  • What’s the impact on HSPs?
  • What’s the impact of Bill 74 on those HSPs like public hospitals and LTC homes that were exempted from some of the LHINs’ powers under LHSIA?
  • Are integration powers broader/different than under the LHIN legislation?
  • What’s the impact on the ability to issue binding directives to HSPs?
  • What’s the impact on the ability to appoint investigators and supervisors over HSPs?
  • What’s the impact on funding of HSPs?
  • What are these new ICDSs?
  • What exactly happens when the Bill passes, and what may happen later?

Note of Caution

As I write this, we’re only at second reading. Details in the Bill may change.

This analysis is not intended to be comprehensive.

Overview – The Evolution of Power Distribution

Bill 74 is essentially a redraft and revisioning of the LHIN legislation (the Local Health System Integration Act, 2006, or LHSIA). Of course, the current government isn’t a fan of the LHINs. So Bill 74 (the Connecting Care Act) is LHSIA on steroids.

As the LHINs evolved under the Liberal government, day-to-day integration decisions about health service providers (HSPs) were devolved from the Minister to the LHINs, along with the responsibility for funding of HSPs. The Minister gave over significant power, reserving for the Ministry powers over integration orders that create what I call “extinction level events” (ELEs). When I refer to ELEs in this blog, I’m referring to integration decisions that require a HSP to:

  • wind-up, dissolve or cease operating
  • amalgamate
  • transfers all or substantially all of its assets to another entity.

The 2016 Patients First Act amended LHSIA so that the LHIN had even greater powers unilateral powers:

  • To issue binding directives to HSPs
  • To appoint investigators and supervisors over HSPs (with notable exceptions for long-term care homes and hospitals).

The 2016 Patients First Act gave the Minister parallel new powers over LHINs – showing that the way the Minister would control the health care system would be by using the LHINs as its operational agencies. The Minister could issues directives to the LHINs, and the LHINs could then pass them down to the sector, in addition to the LHINs’ own unilateral powers. And if the LHINs got out of hand, the Minister had the ability to appoint investigators and supervisors to turn things right. Government also controlled LHINs through the appointment of their board members through Orders-in-Council.

Fundamentally, Bill 74 is repatriating powers back to the Minister. And the Minister may then delegate all of those powers (except for regulation-making) to the new health care “super agency”, OH.

Bill 74 will dissolve the LHINs – not immediately, but eventually and with certainty.

  1. What is Ontario Health?

OH is the new “super agency” that is going to assume the mandates of the 14 LHINs and the following other six government agencies:

  • Cancer Care Ontario (CCO)
  • Trillium Gift of Life Network (TGLN)
  • eHealth Ontario (eHO)
  • HealthForce Ontario (HFO)
  • Health Shared Service Ontario (HSSO)
  • Health Quality Ontario (HQO)

OH is going to be a hugely powerful agency. The Minister may delegate all of her powers (except for regulation-making) to OH. Depending on the extent of delegation by the Minister of her powers to OH, it could become all-powerful over Ontario HSPs. We will have to see how this evolves.

Current status: Even though OH only comes into existence as a Crown agency when Bill 74 is passed, the government has incorporated a non-profit called Health Program Initiatives and has already appointed its first 12-person board of directors:  https://news.ontario.ca/mohltc/en/2019/03/ontario-health-board-of-directors.html

As of Friday, March 8th, by Order-in-Council, the OH board members became the board for all the 20 agencies it will ultimately inherit. The Orders-in-Council of the then-existing directors of the 20 agencies were revoked, allowing them to be replaced. The OH board is now doing initial due diligence to determine what decisions need to be made for the 20 agencies over the immediate next months.

  1. How are the rules for OH different than the rules for LHINs, CCO, TGLN, etc?

Importantly, OH is not required to hold its board meetings in public or to give public notice of its board meetings. This is very different from the public mandate of the LHINs in particular.

Interestingly, the OH board can delegate to its employees any of its powers, except the power to appoint investigators and other powers that may be prescribed by regulation. This allows the OH board to delegate to staff the ability to exercise the following powers that were previously required to be performed by the LHIN boards:

  • Imposing a service accountability agreement (SAA) on a HSP after a negotiation period
  • Issuing directives to HSPs
  • Appointing supervisors over HSPs
  • Issuing a facilitated integration order to a HSP
  • Issuing a required integration order to a HSP
  • Vetoing a voluntary integration by HSPs.

This level of delegation means that the senior staff of OH could be hugely powerful themselves.

Unlike each LHIN currently, there is no requirement for OH to have an integrated health service plan that is publicly available and for its funding decisions to be consistent with that plan.

Unlike some of the existing agencies (such as TGLN), OH will not be able to give indemnities in contracts. This is status quo for CCO and the LHINs.

OH must be audited by the Auditor General. Previously some of the agencies (like LHINs, TGLN and HSSO) engaged their own auditor.

No OH annual report is required to the Minister – this was a requirement for some of the agencies, such as LHINs and TGLN.

Notably, Bill 74 does not include the powers given to the Minister under the Patients First Act in 2016 over LHINs – the Minister cannot appoint an investigator or supervisor over OH.

  1. What is happening to the LHINs under Bill 74?

LHINs are going to disappear, but not immediately. LHIN boards have already been taken over by the OH board as of March 8, and the LHIN mandates will be eventually assumed by OH, with their assets, employees, operations and liabilities being transferred to OH by Ministerial order, mirroring how the CCACs were transferred to the LHINs in 2017.

Bill 74 repeals LHSIA, but that repeal does not take effect on passage (Royal Assent) of the Bill. Instead, the Bill contemplates that LHSIA may be repealed in different provisions on different dates by proclamation. This is clearly intended to be an evolution – over what period of time, we can’t say.

There are a couple hints about how that evolution may play out, embedded in Bill 74:

  • The Bill contemplates amending one specific section of LHSIA (again, not at the time of Royal Assent, but later) that takes Health Quality Ontario out of the reporting loop for LHINs. This suggests the LHINs will be around for a bit.
  • There’s an existing exclusion in LHSIA – the community services (home care services) purchased by a LHIN from service providers under the Home Care and Community Services Act were not themselves HSPs. This exclusion remains, but the LHINs are no longer the ones purchasing the community services – it’s the HSPs or ICDSs directly purchasing community services, with no mention of LHINs. That suggests to me that the LHINs will not be operating the home care services for very long, if we’re plotting out how this is going to evolve.
  1. What’s the impact on HSPs?

If you are an HSP under the existing LHIN legislation, you are a HSP under Bill 74.

And congratulations to independent health facilities – you are joining the fold of HSPs.

It is important to note that physicians still are not HSPs, what I have always considered a fatal flaw. I get the political rationale behind this, but it’s hard to integrate a health care system without physicians.

  1. What’s the impact of Bill 74 on those HSPs like public hospitals and LTC homes that were exempted from some of the LHINs’ powers under LHSIA?

Exemption Table

ExemptionLHSIABill 74
LHIN DirectivesPublic hospitals
LTC homes
University of Ottawa Heart Institute
None

Note: Directives now issued by Minister unless power delegated to OH
LHIN Appointment of InvestigatorLTC homesLTC homes (even if they are part of an ICDS subject to an appointment)

Public hospitals – but the Minister can recommend to Cabinet the appointment of an investigator for a public hospital or the ICDS it is part of (recall that the Minister can recommend the appointment of an investigator to Cabinet under the Public Hospitals Act)
LHIN Appointment of SupervisorPublic hospital
Private hospital
LTC homes
Public hospitals – but the Minister can recommend to Cabinet the appointment of a supervisor for a public hospital or the ICDS it is part of (recall that the Minister can recommend the appointment of a supervisor to Cabinet under the Public Hospitals Act)

LTC homes (even if they are part of an ICDS subject to an appointment)

Note: Supervisors now appointed by Minister unless power delegated to OH
Voluntary Integration OrdersLTC homes, to the extent the Minister or director the Long-Term Care Homes Act had approval right in that legislationSame
ELE Integration OrdersThe Minister could not issue an ELE integration order to a Board of Management.

The Minister could not issue an ELE integration order to a stand-one LTC home (one that is not also a hospital or other type of HSP).

The Minister could not issue a ELE integration order for wind-up/dissolution only to a HSP such as a hospital that also operates a LTC home, where the ELE order is only in respect of the LTC home.
Same.

Plus ELE integration order includes an order to co-ordinate services with or partner with another person or entity that receives funding from the Agency
  1.  Are integration powers broader/different than under the LHIN legislation?

The definition of “integration” is exactly the same.

Integration orders are almost the same, with a few tweaks.

Recall that LHSIA divided integration orders into four categories:

  • Section 25, integrations negotiated/facilitated by the LHIN
  • Section 26, integrations required by the LHIN
  • Section 27, voluntary integrations proposed by HSPs that could be vetoed by the LHIN
  • Section 28, integrations required by the Minister.

These same orders exist but are now framed as:

Type of Integration OrderLHSIABill 74
FacilitatedSection 25(2) – LHINs issueSection 32 - Facilitation decision by OH
RequiredSection 26 – LHINs issueSection 33 - “Integration order” by Minister*
VoluntarySection 27 – LHINs issueSection 35(8) – Decision by the Minister* not to proceed with an integration
MinisterialSection 28 – Minister issues (ELE orders)Section 33 – grouped with Ministerial* orders under “required integrations”

LHSIA had defined “service” very broadly, so that the integration of services included front-line, supportive services for front-line services, and back-office services. Bill 74 does not define “service”, and this is a significant omission. Note that Cabinet can pass regulations defining terms in the Bill not otherwise defined, so it may be the intention to define what constitutes a “service” under the regulations.

As pointed out above, there is a new required integration order the Minister can make (or can delegate to OH to make): to co-ordinate services with or partner with another person or entity that receives funding from the Agency. This is classified with the ELE integration orders above, because the Ministry cannot issue such an order to LTC home licensees that are boards of management or to stand-alone LTC home licensees. I’m a bit puzzled why coordinating services is being grouped with the ELE orders – it’s not like the other ELEs that end a HSP’s existence. It’s not that burdensome to coordinate with another organization – in fact, this is the heart of integrations. I’m not sure what the rationale is here, unless the intent is that integration of services and partnering be done primarily through the ICDSs.

  1. What’s the impact on the ability to issue binding directives to HSPs?

The Minister now assumes the powers to issue directives to HSPs. OH does not have the power to issue binding directives to HSPs, unless this power is delegated by the Minister.

LTC homes, public hospitals and the University of Ottawa Heart Institute are not exempt from binding directives.

Note that the LHINs had to issue a binding directive in draft. This is no longer a requirement.

LHSIA referred to “operational” or “policy” directives. There is no longer this distinction. There is just a reference to “directives”. I don’t think this is material.

LHSIA gave the Minister the power to issue “provincial standards”. This is gone, but the ability to issue directives is so broad it would encompass this former authority to set provincial standards.

Interesting thought:  Given that OH also will include the mandate of eHO, directives could be issued relating to standardized use of EMR systems in Ontario in order to move forward a provincial EMR.

  1. What’s the impact on the ability to appoint investigators and supervisors over a HSP?

OH assumes the power to appoint investigators from the LHINs.

Public hospitals are now exempt from the appointment of an investigator, but the Minister can recommend to Cabinet the appointment of an investigator for the public hospital or the ICDS it is part of.

OH does not take over the power of appointing supervisors from the LHINs. This is now a Ministerial power, which can be delegated to OH.

Public hospitals remain exempt from the appointment of a supervisor, but the Minister can recommend to Cabinet the appointment of a supervisor for the public hospital or the ICDS it is part of.

Recall that the Minister can recommend the appointment of an investigator or supervisor to Cabinet under the Public Hospitals Act.

LTC homes remain exempt from the appointment of investigators and supervisors, even if they are part of an ICDS.

  1. What’s the impact on funding of HSPs?

OH takes over the role of the LHIN in funding HSPs or ICDSs directly. OH may fund both health services and non-health services that support provision of health care. There is no longer a geographic component to the funding as there was with the 14 geographically situated LHINs.

The Minister can assign to OH or any other person or entity an existing funding agreement. Under LHSIA, the Minister could assign funding agreements only to the LHINs – recall the fuss this created in the negotiation of the FHT funding agreement and the concerns about the LHINs taking over funding for the FHTs.

Unlike each LHIN currently, there is no requirement for OH to have an integrated health service plan that is publicly available and for its funding decisions to be consistent with that plan.

Negotiation of the SAA is more expedited than under LHSIA. Recall the 2016 Patients First Act gave HSPs extensive and escalating negotiating rights over the SAA. That negotiation period is now 90 days from first notice. After the 90 days, OH can issue a notice of offer (take it or leave it), and there’s a further 60-day period to finalize. At the end of the 60 days, OH can impose the SAA on the HSP, copying the Ministry. The process no longer includes a written issues statement from the HSP, escalating involvement of CEOs and Chairs, and the funder’s need to consider the HSP’s issues before imposing the SAA.

I’ve tried to summarize how powers are distributed under the Connecting Care Act in this table:

Power Chart

PowerLHSIABill 74
FundingMinister – power over LHIN
LHIN – power over HSPs
Minister – power over OH
OH – power over HSPs and ICDSs
DirectivesMinister – power over LHIN
LHIN – power over HSPs

Minister* only – power over Agency, HSPs and ICDSs
InvestigatorMinister – power over LHIN
LHIN – power over HSPs (with exceptions)
OH – power over HSPs and ICDSs (with exceptions)
SupervisorMinister – power over LHIN
LHIN – power over HSPs (with exceptions)
Minister* - power over HSPs (with exceptions) and ICDSs
Designate an ICDSn/aMinister*
Facilitated/negotiated integration decisionLHIN – power over HSPsOH – power over HSPs
Required integration decisions (including ELE integration decisions)LHIN – power over HSPsMinister* - power over HSPs and ICDSs
Voluntary integration decisionsLHIN – power over HSPs to veto voluntary integrationsMinister* - power over HSPs and ICDSs to veto voluntary integrations

 

*Recall that the Minister can delegate all powers under Bill 74 (except regulation-making) to OH.

  1. What are these new ICDSs?

These are referred to in some media reports as “Ontario Health Teams”, which will, according to government media, provide:

  • one integrated team of health care providers working together to meet your needs
  • a medical record that both you and your providers can access easily
  • help in navigating the public health care system 24/7

The Minister has new powers to designate one or more persons as an ICDS to deliver at least three of the following types of services:

  • hospital
  • primary care
  • mental health or addictions
  • home care or community
  • long-term care
  • palliative
  • services prescribed by regulation.

There may be further regulations established by Cabinet that prescribe conditions and requirements that must be met before a designation of an ICDS by the Minister. Again, a reminder that the Minister can delegate this designation power to OH.

ICDSs will be directly funded by the Agency, which may reduce the number of SAAs across Ontario. OH may provide overarching funding to an ICDS with a constituent board (or all constituent boards?) of the constituent HSPs being required to determine how to allocate funding amongst themselves. We will see how this plays out.

Any power in the Bill relating to a HSP can be extended to an ICDS and each constituent HSP in that ICDS.

Do ICDs have any powers over other HSPs? No, not on the face of the Bill. But note that Cabinet can pass regulations respecting “any other matter that the Lieutenant Governor in Council consider necessary or desirable for carrying out the purposes and provisions of this Act” – which is very broad and would allow Cabinet to devolve/delegate Agency powers to ICDSs.

  1. What exactly happens when the Bill passes, and what may happen later?

Very little actually happens when the Bill receives Royal Assent.

Under the Connecting Ontario Act, nothing happens on Royal Assent (not even creating OH as a crown agency). Everything happens by proclamation.

Schedule 3 of the Bill sets out the impacts on other pieces of legislation. On Royal Assent:

  • The composition of CCO’s board changes under the Cancer Act to align with OH
  • The Cancer Act can be repealed in different parts on different dates
  • The composition of HQO’s board changes under the Excellent Care for All Act to align with OH
  • ECFAA can be repealed in different parts on different dates
  • LHSIA can be repealed in different parts on different dates
  • The Lung Health Act can be repealed in different parts on different dates
  • The composition of TGLN’s board changes under the TGLN Act to align with OH
  • Mysteriously, the non-existent section 246 of ONCA is repealed. Anyone who figures this out gets a gold star. Why would anything in ONCA be repealed immediately when ONCA itself isn’t in force yet?

This will be an evolution. The question is, how fast or how slow?

 

Questions? Please contact Kathy O’Brien @ kobrien@ddohealthlaw.com.