Difference between revisions of "Introduction to Legal Issues in Admission and Transfer in Residential Care"

This chapter describes legal issues associated with the process of a person transferring from home, hospital or other setting such as an assisted living facility to residential care.  It briefly describes the assessment process; consenting to admission; care plan development; and contracts signed at the time of admission. The admission process is largely shaped by the Ministry of Health’s Home and Community Care Policy, residents’ rights and the common law (contracts and consent).

Although the number of older adults in British Columbia needing care and support has increased significantly in the past decades, the number of higher level “care beds” to meet those needs has only increased marginally, leaving a gap in care and support. In many cases, people move into residential care facilities because their needs have expanded beyond what other systems such as assisted living and community or family support can offer.

:c) The primary reason for discharging a resident from a residential care facility is that the resident no longer requires the care offered by the facility, or the resident requires a higher level of care that can only be provided elsewhere.

British Columbia has a provincial home and community care assessment and placement system, but operated and managed within each regional health authority. This system determines people’s eligibility for admission to care facilities, decides who has priority, and manages the waiting list for admission to publicly funded “beds” in residential care facilities.  In theory, no one can be admitted to a facility unless the health authority has found the applicant eligible and authorizes their placement in a particular facility, and the applicant (or appropriate substitute decision maker) consents to that placement.

:''“Health authorities may authorize exceptions to policy in client specific circumstances, based on assessed need. Health authorities must maintain a record of waivers and any exceptions to provincial policy and report these, with the relevant background information such as rationale and timeframe for the exception, to the ministry.”''

A prospective resident (or applicant) may come from a variety of places while waiting to move to a residential care facility. This includes living at home, in an assisted living residence, in a hospital, an alternate level of care (transition care facility) , in a non-subsidized residential care bed, or in a subsidized residential care bed that is not in their preferred facility or community.

People who are not able to move directly into their preferred facility can put their names on a waiting list to be transferred to their facility of choice. The health authorities maintain transfer waiting lists in addition to the lists of people waiting for initial placement.  In practice, transfers from other residential care facilities are becoming far less common, in part because of the complex care needs.  Today the average length of residence for people from the time of their admittance to the care facility to the end of life is only six to eighteen months.  Families find that the waiting time to transfer commonly exceeds that,  and one health authority states it does not permit transfers within the first two months.

   

   

The cost of publicly funded residential care services is shared between the Ministry of Health and the person receiving services.  The Continuing Care Fees Regulation sets out the fees payable for subsidized residential care, identifying a maximum and minimum rate. This is referred to as a “client rate”.  

The  resident “co-payment” ranges from $958.90 per month to $3,059.00 per month. The minimum rate is adjusted annually based on changes to the Old Age Security/Guaranteed Income Supplement rate as of July 1 of the previous year. The maximum client rate is adjusted annually based on changes to the Consumer Price Index.

   

The cost of subsidized residential care is typically borne by and paid by the individual resident. It is based on income not assets. To apply for subsidized residential care, residents first must consent to disclosure of the income tax information they provided to Revenue Canada. This consent to disclose is required annually. If there is a spouse, the spouse must consent as well. If either person does not consent or cannot consent, the resident will be assessed at the highest residential rate.

This default position can cause considerable hardship for the individual and a spouse, partner, or family. According to the Home and Community Care policy, a spouse or other person can only give consent to provide the income tax and other financial information for the purposes of determining financial eligibility if they can show they have legal authority to do so (that is through a power of attorney, section 7 Representation Agreement, or as a Committee of the Estate). Documentation of that legal authority is required.  After calculations, the health authority informs the Operator of the appropriate client rate and is not permitted to share any income information.  

As previously noted, the statutory authority for client rates is covered by the Continuing  Care Fees Regulation. The person may have low income, or may have higher income but his or her spouse is still living at home. If paying the full client rate would cause serious financial hardship, the resident or his or her substitute may apply for a temporary reduction of the rate.

This is referred to as a “hardship waiver” in the regulations. The Ministry of Health and health authorities use the term “temporary rate reductions”. These waivers or reductions are also available for other costs such as wheelchair fees. Residents and families may not be unaware these waivers exist, how to apply, or the need to re-apply annually. For others, the fact these are referred are  called hardship waivers is itself embarrassing and stigmatizing, especially given the fact that many older people and their families do not want to be thought of as “charity cases”.  

   

All aspects of service provision are agreed to by the individual and the Operator in the contract. Government does not provide any financial assistance to individuals or Operators for the service.