Nursing Homes in the COVID-19 Era

The care received by residents in nursing homes has been a public policy concern that has been percolating for some time. As we all adjust our personal and professional lives in response to the COVID-19 pandemic, the media reports continued outbreaks and deaths amongst seniors – primarily in long-term care homes. A recent Globe and Mail report found that 79% of all COVID-19 related deaths are in fact amongst long term care residents! Of Ontario’s 662 long-term care homes, 100 have experienced outbreaks.

Canada has an aging population. Presently, 15% of our population is over the age of 65, and that demographic is expected to double in the next twenty years. More and more retirees are living in what we commonly and interchangeably refer to as nursing homes, senior communities, assisted living centres and retirement residences. It is reasonable to assume that in the future, these facilities will continue to multiply in response to meeting the needs of an aging population.

Given that public health officials advised us early on that the elderly were particularly susceptible to infection, we have a duty to question what measures were taken to minimize the risk of outbreak in nursing homes.

An overview of the structure of these types of facilities is helpful.

What is a Long-Term Care Home?

A nursing home is more accurately called a “long-term care” home, which is provincially funded by the Ministry of Health. These facilities provide 24-hour access to medical, nursing and attendant care such as assistance with bathing, toileting, dressing, mobility and feeding. They also provide access to pharmacy services, recreational programs and therapeutic programs such as physiotherapy and occupational therapy. Long-term care (“LTC”) homes are regulated by the Long Term Care Homes Act 2007. In order to be admitted into a LTC home, a referral must be made by the individual’s physicians and their Local Health Integration Network (“LHIN”). The LHIN assesses eligibility for admission, and identifies the best LTC home that will meet the individual’s needs.

LTC homes typically house individuals with severe cognitive dysfunctions (dementia, Alzheimer’s) and those with reduced physical capabilities (ie stroke victims). About 90% of residents in LTC homes are cognitively impaired. Age is not a prerequisite for admission; adults under the age of 65 with complex medical needs (such as quadriplegia, cerebral palsy) may be eligible for admission.

While LTC homes are publicly funded as part of Ontario’s delivery of health care, it would be misleading to suggest that they are not profit-driven. Almost 60% of LTC homes are privately-owned; the rest are either not-for-profit facilities or municipal-owned. Residents pay fees for their accommodations. The accommodation rates vary depending on the type of accommodation (private vs semi-private room, short-term vs long-term stay, etc). Additionally, non-OHIP services are charged to the resident, such as hair care, recreation, and medications.

What is a Retirement Residence?

Retirement residences are licensed by the Retirement Home Regulatory Authority, and governed by the Retirement Homes Act.

The Retirement Homes Act defines a retirement home as a residential complex that is occupied primarily by persons who are 65 or older, are occupied by at least six people not related to the operator, and makes available at least two of the thirteen care services set out in the Act. These services include providing meals, assistance with bathing, personal hygiene, dressing or ambulation, providing a dementia care program, administering medicine, providing incontinence care or making available the services of a doctor, nurse or pharmacist.

The legislation specifically excludes homes under the Long Term Care Homes Act, 2007.

Retirement residences are private facilities that function as communities. There are multiple types of residences that fall under the “retirement home” umbrella. They range from supportive “independent living” residences to dementia-based residences. The supportive independent living model allows the individual to live independently while purchasing those services that they need – such as help with bathing or meals. The assisted living model is for those that cannot live independently, and includes care services in its accommodation fees. Dementia care models are equipped with staff and service providers with an expertise in dementia care.

Both LTC homes and retirement residences deliver health care, and employ nurses, personal support workers and other health care workers. Retirement residences will often have different levels of graduated care within one facility, with a locked “dementia floor”. Many retirement residences will therefore operate much like a LTC home.

Residents’ Bill of Rights

Both the Long Term Care Homes Act, 2007 and the Retirement Homes Act have each enacted a Residents’ Bill of Rights. The Residents’ Bill of Rights in section 3 of the Long Term Care Homes Act, 2007 consists of 27 rights including:

  • The right to be treated with courtesy and respect and in a way that respects the resident’s dignity;
  • The right not to be neglected by staff;
  • The right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
  • The right to live in a safe and clean environment.
  • The right to be afforded privacy in treatment and in caring for his or her personal needs.
  • The right to have his or her participation in decision-making respected

The full list of rights can be found here.

The Residents’ Bill of Rights in the Retirement Homes Act can be found here. While not as comprehensive, the overall scope is very similar to the one in the Long Term Care Homes Act 2007.

The Residents’ Bill of Rights forms part of the contract between the resident (and his/her substitute decision maker) and the facility.

Infection Control in Long-Term Care and Retirement Homes

Superficially, at least, it appears that the regulatory framework has set out measures that could have prevented the outbreak that is occurring in the LTC and retirement homes.

The Long Term Care Homes Act 2007 specifically mandates the implementation of an infection control program within the LTC home. More specifically, section 86 states:

86 (1) Every licensee of a long-term care home shall ensure that there is an infection prevention and control program for the home.

Requirements of program
(2) The infection prevention and control program must include,
(a) daily monitoring to detect the presence of infection in residents of the long-term care home; and
(b) measures to prevent the transmission of infections.

Standards and requirements
(3) The licensee shall ensure that the infection prevention and control program and what is provided for under that program, including the matters required under subsection (2), comply with any standards and requirements, including required outcomes, provided for in the regulations.

Emergency plans
87 (1) Every licensee of a long-term care home shall ensure that there are emergency plans in place for the home that comply with the regulations, including,
(a) measures for dealing with emergencies; and
(b) procedures for evacuating and relocating the residents, and evacuating staff and others in case of an emergency.

Testing of plans
(2) Every licensee of a long-term care home shall ensure that the emergency plans are tested, evaluated, updated and reviewed with the staff of the home as provided for in the regulations.

The Retirement Homes Act also requires an infection control program;

Every licensee of a retirement home shall ensure that the following are in place for the home:

1. An emergency plan that responds to emergencies in the home or in the community in which the home is located and that meets the prescribed requirements.
2. An infection prevention and control program that meets the prescribed requirements.

Moreover, the Retirement Homes Act also directs that:

Every licensee of a retirement home shall ensure that no staff work in the home unless they have received training in,
(a) The Residents’ Bill of Rights

(h) the emergency plan and the infection prevention and control program of the licensee

Under the Long Term Care Homes Act 2007, the province must conduct an inspection of the LTC home on an annual basis. A complaint or an incident at the home (such as an accident) may also trigger an inspection. Inspections are key to identifying gaps in hygiene protocols and infection control. Since 2018, however, the provincial government has reduced the frequency of inspections, and has relied mostly on a complaints-based program to trigger inspections.

The Retirement Homes Act also provides for annual inspections. Additionally, section 27 of the Regulation enacted under the Retirement Homes Act instructs the licensee to annually consult the local medical officer of health “about identifying and addressing health care issues in the retirement home in order to reduce the incidence of infectious disease outbreaks in the home”. All infectious disease outbreaks must be reported to the local medical officer of health. It is unclear if the province had cut back on inspections of retirement homes.

The current pandemic is laying bare the crises that is afflicting LTC homes and assisted living facilities, as the number of COVID-19 infections amongst residents and staff are multiplying exponentially in these residences. There are reports that staff have not been provided with personal protective equipment such as masks and gowns, and that personal support workers may not have been respecting “physical distancing” measures that were mandated by the provincial government.

In this context, the question that arises is whether these facilities had an established infection-control program that was being adhered to when the pandemic broke out, and whether staff were properly trained and instructed to follow infection-control protocols – or even hygiene and sanitation safety measures that may have reduced the risk of exposure. As family members stand outside these facilities, hoping to catch a glimpse of their elderly parents or grandparents through a window, they are asking themselves whether this was a tragedy waiting to happen. Were the Residents’ rights to a safe and clean environment breached? Were there pre-existing systemic problems in the administration of these types of facilities that encouraged the outbreak and exponential rate of deaths when the outbreak began? Did the licensees fail to hire properly trained staff? Why are personal support workers paid low wages when we entrust them with the care of society’s most loved, most cherished residents? Did the wage structure encourage staff to seek employment at multiple facilities? Did the travel between multiple facilities by workers contribute to the lack of physical distancing and enhanced infection rates?

These questions will have to be addressed in a post-COVID-19 environment, with a possible overhaul of the entire LTC and assisted living models.

Najma Rashid
Written by

Najma Rashid joined Howard Yegendorf & Associates in 1999 and became a partner of the law firm in 2009. Her practice is devoted exclusively to personal injury litigation and she is well versed in Ontario’s Insurance Act and its Regulations, including the Statutory Accident Benefits Schedule.

Najma has developed an expertise in disability and bad faith claims against insurance companies, and participates in the Long-Term Disability Section of the Ontario Trial Lawyers Association.

Najma is a member of the Ontario Trial Lawyers Association and the Advocates Society, as well as a supporter of organizations such as REACH Canada, the Ontario Brain Injury Association and the Canadian Paraplegic Association.