Amendments to 24/7 Nursing Care Requirements Allow Small Hospitals that Operate LTC Homes to Maximize Resources

February 12, 2013 | Kathryn M. Frelick

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

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


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