In light of the COVID-19 pandemic, the Government of Ontario has both amended and created orders and regulations (collectively, “orders”) to ensure regulated seniors’ housing in the Province is able to meet the needs of its vulnerable population. This post details the relevant changes to date to long-term care and retirement homes (collectively, “seniors’ homes”).
The Government of Ontario has issued extensive orders affecting the regulation of seniors’ homes during the COVID-19 pandemic, many of which impose additional burdens on those who operate seniors’ homes (“licensees”). Particularly, the orders affect how licensees staff seniors’ homes; how seniors’ homes regulate visits and discharge or admit residents; and how seniors’ homes protect the health and safety of residents and staff.[1] Note that any guidance, advice, or recommendations that the Chief Medical Officer of Health (the “CMO”) gives to long-care homes also apply to retirement homes.[2]
Staffing seniors’ homes during the pandemic
Recent orders effect two key changes to the usual staffing requirements and processes for seniors’ homes. The first applies to work deployment and staffing practices. During the pandemic, licensees of seniors’ homes are authorized to take any reasonably necessary measure to deal with the COVID-19 outbreak and develop or adjust redeployment plans accordingly. This includes changing work assignments or shifts schedules, deferring or cancelling vacations or leaves, or employing additional staff, regardless of any constraints in collective agreements.[3]
The second applies to employees of seniors’ homes, who are now limited to working in only one seniors’ home during the pandemic. Until the relevant orders are revoked, employees of one seniors’ home are prohibited from working in another seniors’ home or any other health service provider facility.[4]
There have also been changes to how licensees staff long-term care homes specifically. In particular, orders have relaxed the mandatory police checks and training timelines for new staff and volunteers, and amended or removed requirements for when or how long certain staff must be on site.[5] Licensees should specifically note a recent order that gives a Director under the Long-Term Care Homes Act, 2007 the authority to demand that a licensee hire—at the licensee’s expense—one or more persons to manage the long-term care home if one resident or staff member of the home tests positive for COVID-19.[6]
Furthermore, the Government of Ontario has also issued emergency orders for other health service providers such as hospitals, psychiatric facilities, or school boards to redeploy their staff to long-term care homes to provide various types of assistance.[7] To ensure long-term care homes receive the assistance they need, the Minister of Long-Term Care issued a directive requiring long-term care home licensees to cooperate with Ontario Health, provide entry into their long-term care homes, and implement the assistance provided.[8]
Regulating visits and discharging or admitting residents
A number of orders and directives have implemented changes to how seniors’ homes discharge and admit residents or facilitate visits during the pandemic. As retirement homes are privately-paid residences, residents are not “discharged” or “admitted”, so most of the changes that affect discharging or admitting a resident are specific to long-term care homes. However, some of the requirements for admitting a resident into a long-term care home will apply to new residents who move in a retirement home during the pandemic.
To discharge a resident during the pandemic, a long-term care home must receive a written discharge request from the resident, provide the resident with written care instructions, and inform the resident that the long-term care home will no longer be responsible for the resident’s care, safety, or well-being.[9]
When a long-term care home admits a resident during the pandemic, some of the admission requirements are relaxed, and licensees are exempt from any admission requirement to the extent the exemption is necessary to effect admission. This applies whether a long-term care home is admitting a person for the first time or re-admitting someone who was discharged during the pandemic, but also extends to hospital patients who may be admitted into a long-term care home to ease capacity pressures a hospital is facing because of the pandemic.[10]
The CMO’s Directive #3 prohibits admissions if a long-term care home experiences a COVID-19 outbreak. Admissions may only continue once the outbreak is over. Directive #3 also requires that long-term care homes screen new residents for symptoms of or potential exposure to COVID-19 and place new residents in self-isolation for 14 days.[11] The Ministry of Health (the “Ministry”) issued the COVID-19 Outbreak Guidance for Long-Term Care Homes (the “Outbreak Guidance”) to complement Directive #3.[12]
The screening, self-isolation, and admission prohibition requirements under Directive #3 and the Outbreak Guidance also apply to residents moving into retirement homes during the pandemic. Hospital patients may also be relocated to retirement homes to ease pressure on hospital capacity during the pandemic.
Directive #3 and the Outbreak Guidance also modify how seniors’ homes facilitate visits into or out of the home during the pandemic. Currently, visits to seniors’ homes are restricted to persons visiting residents who are very ill or palliative. All visitors have to be screened upon arrival, and will only be admitted if they are not showing any symptoms of COVID-19. Residents themselves are prohibited from leaving the seniors’ home to visit family and friends, and may only go outside the home if they remain on the home’s property and maintain social distancing.[13]
Ensuring the safety of seniors’ homes’ residents and staff
To ensure the safety of residents and staff at seniors’ homes, the Ministry has issued a number of directives, guidance documents, and tools related to screening and testing residents, visitors, and staff, for symptoms of COVID-19. These resources also mandate what personal protective equipment (“PPE”) should be worn by whom and when.
Seniors’ homes must screen residents, staff, and visitors twice a day, which includes screening for symptoms of COVID-19 and checking temperatures. The Ministry issued a screening tool to assist seniors’ homes with the screening process.[14] Two additional Ministry resources recommenda low threshold for COVID-19 testing, provide some guidance on when seniors’ homes should test residents, and outline the process a seniors’ home should follow if a test comes back positive.[15]
The CMO’s Directive #5 requires that seniors’ homes implement mandatory precautions and procedures for seniors’ home employees who are members of a regulated health profession.[16] For example, seniors’ homes must provide information to staff on the safe use of PPE, assess the availability of PPE on an ongoing basis, develop a contingency plan in case of PPE shortages, and provide their health care worker staff access to any health or safety measures the worker believes is required. Directive #5 also requires that all staff and essential visitors of seniors’ homes wear masks at all times for the duration of their shift or visit.
Conclusion
While it is important and necessary to adapt regulations to ensure the safety of seniors in Ontario, unfortunately for those who operate seniors’ housing, it means a changing landscape of permissions and restrictions. The Dentons Health Care team is available to assist current or prospective licensees navigate the changes to ensure a smooth transition during as well as after the COVID-19 pandemic.
[1] Though this post outlines changes to the Long-Term Care Homes Act, 2007 and Retirement Homes Act, 2010, certain aspects of long-term care and retirement homes may be affected by changes to other legislation.
[2] O Reg 68/20.
[3] O Reg 77/20 (applies to long-term care homes); O Reg 118/20 (applies to retirement homes).
[4] O Reg 146/20 (for employees of long-term care homes); O Reg 158/20 (for employees of retirement homes).
[5] O Reg 72/20.
[6] O Reg 210/20.
[7] O Reg 74/20 (hospitals and psychiatric facilities); O Reg 156/20 (contracted service providers under the Home Care and Community Services Act, 1994 upon request from a local health integration network); O Reg 205/20 (school boards).
[8] Ministry of Health and Long-Term Care, “Minister’s Directive: COVID-19: Supporting Long-Term Care Homes” (24 April 2020), online: Government of Ontario <www.health.gov.on.ca/en/pro/programs/ltc/directive_supporting_ltch_20200424.aspx>.
[9] O Reg 83/20. The same requirements apply if the resident has a substitute decision maker.
[10] Ibid.
[11] Chief Medical Officer of Health, Directive #3 for Long-Term Care Homes under the Long-Term Care Homes Act, 2007 (30 March 2020), online: <www.oha.com/Bulletins/CMOH%20Directive%203%20-%20Long-Term%20Care%20Homes%20-%20HPPA%2003%2030%202020%20Shared.pdf> [Directive #3].
[12] Ministry of Health, COVID-19 Outbreak Guidance for Long-Term Care Homes (15 April 2020), online: <www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/LTCH_outbreak_guidance.pdf> [Outbreak Guidance].
[13] Directive #3, supra note 11; Outbreak Guidance, supra note 12 at 5–6, 11.
[14] Ministry of Health, COVID-19 Screening Tool for Long-Term Care Homes and Retirement Homes (6 May 2020), online: <www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/2019_screening_guidance.pdf>.
[15] Ministry of Health, COVID-19 Guidance: Long-Term Care Homes (15 April 2020), online: <www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/2019_long_term_care_guidance.pdf>; Ministry of Health, COVID-19 Provincial Testing Guidance Update (2 May 2020), online: <www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/2019_covid_testing_guidance.pdf.>.
[16] Chief Medical Officer of Health, Directive #5 for Hospitals within the Meaning of the Public Hospitals Act and Long-Term Care Homes within the Meaning of the Long-Term Care Homes Act, 2007 (10 April 2020), online: <www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/public_hospitals_act.pdf>.
