Overview of Legal Issues in Residential Care

This chapter introduces residential care in British Columbia. It provides an overview of the laws that commonly come into play for residential care facility providers, the staff and the residents who live there. The chapter is divided into two parts. The first is an overview of residential care system and the people who work in this system; the second describes key laws that govern the area and the lives of many residents.

What is Residential Care?

“Residential Care” is the formal term used by the British Columbia Ministry of Health for what the public commonly calls nursing homes, care homes, care centres, long term care homes, extended care, or geriatric care facilities. The Ministry of Health notes:

“Residential Care is for adults with complex health care needs requiring 24-hour professional care due to physical disability or mental or behavioral conditions, including brain injuries or dementia.”

1. What is Residential Care?

The term “residential care” refers to places where a person can receive health care services, accommodation and support on a regular basis. Residential care is typically viewed as providing a higher level of care and support than other types of facilities in the community such as assisted living. Since 2002 under provincial health care policy, publicly funded (subsidized) residential care facilities are available only to people who need “complex care”.

While acute care hospitals are places of temporary stay for health care, residential care facilities are very importantly the person’s home in which health care, assistance and other support will be provided on a regular, ongoing basis. It is where the people live their lives and continue to have relationships. Residential care facilities are also collective settings, meaning that the rights of residents must sometimes be balanced against the individual and collective rights of other residents to safety, privacy, etc.

2. When is it Residential Care?

Residential care facilities are required to provide a number of core services. These include:

• Accommodation
• 24-hour care
• Meals, housekeeping, laundry, recreational activity programs, emergency response
• Personal care assistance
• Other services such as physical therapy, social work and nutritional support
• A secure environment.

British Columbia’s residential care facilities differ from other types of accommodation, services and support such as assisted living facilities in the types of health care services and support (“prescribed services”) that can be provided there, as well as the numbers, and intensity of services and support. Residential care facilities must provide three or more “prescribed services” These services include:

(a) Regular assistance to the person with activities of daily living, including eating, mobility, dressing, grooming, bathing or personal hygiene;

(b) Medication administration or monitoring as the person takes the medication; storing and distributing medication;

(c) Maintaining or managing the resident’s cash resources or other property;

(d) Monitoring the resident’s food intake or whether the person is adhering to a therapeutic diet;

(e) Providing structured behaviour management and intervention;

(f) Providing psychosocial rehabilitative therapy or intensive physical rehabilitative therapy.

Any care facility that provides these “prescribed services” to three or more persons who are not related to each other by blood or marriage must be licensed as a residential care facility.

It is not always easy to identify whether a facility provides independent living, residential care or an assisted living simply by its business name. The area is further confused by the fact that some businesses or organizations offer a “campus of care” in which different kinds or levels of health care services, accommodation and support are being offered in the building or location (for example, independent living, assisted living, residential care, and specialized dementia care). The situation is further complicated by the fact that some residential care may be provided in “extended care “(an extended care wing of an acute care hospital, or in an extended care building, which may be physically near the hospital).

Practically speaking, what makes residential care facilities in British Columbia distinctive are the characteristics of the people who live there. In contrast to assisted living facilities where residents must be able to make decisions on their own in order to live there, a sizeable proportion of people who live in British Columbia’s residential care facilities today may have difficulty making some types of decisions without support.

3. What is Complex Care?

The term “complex care” as used by the Ministry of Health refers to care and support for people who:

• are moderately or severely cognitively impaired;
• are physically dependent (their medical needs require professional nursing care, and they need a planned program to retain or improve their functional ability);
• have multiple disabilities and/or complex medical conditions that require professional nursing care, monitoring and/or specialized skilled care (“clinically complex”); or
• have severe behavioural problems on a continuous basis.

Quick Facts on Residential Care in British Columbia (2009)

• In 2009, there were 348 residential care facilities in the province.

• Together these facilities had 28,992 residential care “beds”.
  • Two thirds (19,165) of the beds came under the Community Care and Assisted Living Act.
  • One third (9,827) of the beds came under the Hospital Act (7,099 extended care beds, and 2,728 private hospital beds).

• Private hospitals are primarily located in Vancouver Coastal Health Authority and Fraser Health Authority.

• 91% of residential care beds were publicly subsidized (26,491 beds).

• Many BC residential care facilities have a high turnover of residents and staff
  • Over 38,411 adults received residential care services in 2009.
  • Approximately 45-50% of the residents are new each year.
  • There is an annual staff turnover of 50 per cent.

• Approximately 43% of the care aides in the province work on a casual basis (that means they have no guarantee of hours per week and may have multiple employers).

Each Health Authority’s website carries basic information on the residential care facilities within their jurisdiction. See Table 1 for the websites. That may include for example, the facility’s location, the costs, the number of beds and how many (if any) are subsidized. It may also include information on whether the facility has been nationally accredited, any special security features, if there are policies on pets, scooters, or smoking. Some health authority lists of residential care facilities will also direct the public to the provider’s website with more information.

Table 1 Residential Care Facilities Listed by Health Authority

Health Authority	Listing
Fraser Health Authority	www.fraserhealth.ca/your_care/residential_care/residences/
Interior Health Authority	www.interiorhealth.ca/FindUs/_layouts/FindUs/By.aspx?type=Location
Northern Health Authority	www.northernhealth.ca/YourHealth/HomeandCommunityCare/HomeandCommunityCareServices/ResidentialCare/ResidentialCareFacilities.aspx
Vancouver Island Health Authority	www.interiorhealth.ca/FindUs/_layouts/FindUs/By.aspx?type=Location
Vancouver Coastal Health *	www.vch.ca/your_health/health_topics/residential_care/ Vancouver: www.vch.ca/your_health/health_topics/residential_care/vancouver_facilities
*Click on the address to find more information

NOTE: Information on a particular residential care facility’s company website will not always be up to date or accurate. In some case, it may represent the law or process of another jurisdiction.

4. Funding: Three Types of Facilities

The public is often very confused about care facilities, who runs it , who is responsible, and who pays. There is good reason for that confusion:

a) A care facility may be directly operated by a regional health authority. These are partially subsidized by public funds.

b) Most facilities are operated by providers that have a contract with a regional health authority. These are financially supported, but not directly operated, by the regional health authority. Most of these rooms are partially subsidized by public funds, but some providers also offer private pay rooms in the same facility.

c) The third type of facility is not connected with the regional health authority. These facilities only have private pay rooms. For private pay rooms, all costs are covered by the resident.

Funding for subsidized residential care comes from two main sources: the provincial government (public funds) and monthly payments from residents (or their families on their behalf).

People living in subsidized residential care pay up to 80 per cent of their after-tax income as a residential care fee, provided that they have at least $325 remaining from their income each month. The fee, referred to as a “co-payment,” ranges from $970.50 to $3,092.60 per month (2014 figures).

From those remaining funds, the resident may be required to pay additional charges for “optional services “ (called “chargeable extras”), including a personal wheelchair, private accommodation, “preferred care products”, haircut, cable, outings and telephone services. The cost of prescription and non prescription drugs are not covered in the residential care fee, except in extended care units.

The maximum client rate is adjusted annually based on changes to the Consumer Price Index. There is a mechanism for obtaining a “temporary rate reduction” if the amount would cause the person or their family serious financial hardship. The Ombudsperson Report notes that this information on the availability of a reduced rate often was not being provided to people. The Ministry of Health has begun including the information in letters to clients and now posts it on the Home and Community Care website.

What Are the Differences Between Licensed Residential Care Facilities and Extended Care or Private Hospitals?

There are several important differences between residential care facilities that fall under the Community Care and Assisted Living Act and the care facilities that fall under the Hospital Act. These relate to whether the facility will have legislated care standards, physical environment standards or restrictions on double occupancy; whether the facility is subject to routine inspections; whether there are reporting requirements for abuse, neglect or other incidents; and whether they are required to have a medical practitioner or registered nurse on site. Some of these differences are summarized in Table 2.

Although there are funding and other differences, all three types of facilities are licensed by the health authority.

Table 2 Comparisons of Licensed Residential Care Facilities & Licensed Private Hospitals & Extended Care Units

	CCALA (Residential Care Facilities)	Hospital Act(Private Hospitals & Extended Care Hospitals)
How people are described in law	Persons in care(residents)	Patients
Legislated care standards	Yes	No
Residents’ bill of rights statement	Yes	Yes
Criminal record checks required by law for staff	Yes	Yes
Remedies under Patient Quality of Care Review (PCQO/PCQRB)	Yes	Yes
Detailed physical standards	Yes	No
Licensed	Yes	Yes for private hospital
Restrictions on double occupancy room	Yes	No
Responsibility to report incidents to key parties	Yes	Yes
“Routine” inspections	Yes	No
Inspection reports posted	Yes	No legal requirement In practice, yes
Legally required to report abuse or neglect of residents	Yes	No –not under Hospital Act
Residents’ bill of rights statement	Yes	Yes
Residents’ bill of rights statement	Yes	Yes
Residents’ bill of rights statement	Yes	Yes

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.

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