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).

Introduction

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.

Licensed residential care facilities have three essential features that set them apart from other supportive living environments, such as assisted living. Each is an important consideration when applying and interpreting the law in this area.

a) A person cannot be admitted to a subsidized residential care facility or extended care facility without having specific care needs. The person must have a level of care need that cannot be appropriately met in the community. (1)Today, that means the person requires what is referred to in the British Columbia health system as “complex care”.

b) All licensed residential care facilities (including private pay hospitals and extended care facilities) have a responsibility for monitoring on-going care needs, identifying significant changes and meeting the current and changing care needs of the residents.

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.

Basic Issues in Eligibility for Residential Care

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.

To be eligible for residential care, the person must:

• Have a health care need that requires 24-hour nursing and personal care (2)
• Be a citizen of Canada or have permanent resident status *
• Be 19 years of age or older
• Have lived in B.C. for ninety (90) days or longer** (can be waived in certain circumstances)
• Agree to the assessment process *** (unless involuntarily admitted or transferred to the facility under the Mental Health Act).

Special note : Financial Eligibility for Subsidized Rate In order to be eligible for residential care at a subsidized rate, the person must also agree to the release of financial information to the health authority in order to determine financial eligibility. If they do not agree to that financial disclosure, or they are not capable of consenting, they are assessed at the highest rate.

Some health authorities state in their public information that the individual must also exhaust all other home care community options. (3)Nothing in the Ministry of Health eligibility criteria requires this. The primary issue for most residential care admissions is that the person meets the high threshold of needing 24 hour care. For subsidized residential care, the person must also meet the financial eligibility requirements for the public subsidy.

The most common reason for people to need residential care these days is a blend of physical health and cognitive factors for the prospective resident, as well as environmental factors such as risky living circumstances and caregiver burnout. The prospective residential care facility applicant is often a person with multiple and complicated chronic health conditions, with or without dementia that has progressed to the moderate to advanced stages.

In British Columbia, people who can no longer be cared for in their own homes or in an assisted living residence will be candidates for residential care services if:

• they are physically dependent, with medical needs that require professional nursing care, and require a planned program to retain or improve functional ability;
• their conditions are clinically complex (meaning they have multiple disabilities or complex medical conditions that require professional nursing care, monitoring or specialized skilled care);
• they are moderately to severely cognitively impaired; or
• they have severe behavioural problems on a continuous basis.(4)

To determine the prospective resident’s health care needs in the community the Ministry of Health uses a standardized tool called the Resident Assessment Instrument (or RAI). That assessment tool helps to identify needs and degree of urgency for placement. A specific version of the standardized assessment tool Resident Assessment Instrument Minimum Data Set (RAI MDS 2.0) is used in residential care facilities for the assessment and care planning.

Special Note: An Exception is Always Possible For any type of health authority decision made about prospective or current residents, an exception is always possible. It may be rare, but it is possible. “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.”(5)

Moving to Residential Care

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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) (6), in a non-subsidized residential care bed, or in a subsidized residential care bed that is not in their preferred facility or community.(7)

Placement in residential care is based on a system of “priority access”. According to Ministry of Health policy, clients on the waiting list are prioritized based on the urgency of their care needs. That priority is established by the assessment process administered by health authorities and is commonly referred to as the “first available bed” or “first appropriate bed” process. (The Ministry of Health now prefers the term “first appropriate bed.”)(8) In recent years, the health authorities in British Columbia have given priority for residential care placement to people transferring from hospital over those at home or in another facility.(9) The health authorities, not the private care facility operators, manage the waitlists for all funded beds in the residential care facilities.

Important Note: If the resident or substitute decision maker decides to pay privately, the resident will be placed further down the waitlist for a publicly funded bed because the person’s situation is no longer considered as urgent by the health authority.

In the best of worlds an older adult’s admission (or transfer) to a residential care facility would be a carefully considered and planned matter. Today for many people this decision and process often occurs in a rushed manner, with few options and without needed information. This can leave the prospective resident, family and others struggling to know:

• what choice in facilities they have, if any,
• what information they should be receiving,
• what their rights and responsibilities are,
• what the financial implications of their decisions are,
• what the Operators’ responsibilities are, and
• any avenues of recourse they may have if issues arise.

Part of the challenge that people face are systemic issues and pressures in the acute care hospital for the prospective resident to be “anywhere but here in the hospital.”

Transfers

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. (10)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, (11)and one health authority states it does not permit transfers within the first two months.(12)

Costs

Cost of a (subsidized) residential care facility

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”.(13)

The Ministry of Health and the health authorities pay for the cost of care in publicly funded residential care services. The resident pays the “accommodation costs” in what is sometimes referred by the Ministry as a “co-payment”.

Accommodation in some older residential care facilities may consist of 3 or more beds to a room. Most new residential care facilities have semi-private rooms (2 beds in a room), or a private room has a single bed in a room. Multi bed rooms are considered “basic accommodation,” with private rooms commanding a higher rate.

The Resident Bill of Rights for Residential Care Facilities, private hospitals, and extended care units in hospitals identify a responsibility on the Operator to “advise persons who are being admitted of all fees, charges, and policies”, and “provide an avenue to file concerns or complaints.” (14) This requirement is reinforced by s. 48 (1) (a) of the Residential Care Regulations.(15)

People in subsidized residential care will pay up to 80 per cent of their after-tax income to cover the cost of housing and hospitality services including meals, routine laundry and housekeeping (“the accommodation costs”), subject to a minimum and maximum monthly rate. The actual amount paid must leave the individual with at least $325 (effective February 1, 2012) remaining from their income each month. For many British Columbia residents, this remaining amount often may be all that is available to cover all their “optional costs” (for examples, telephone, own wheelchair, “preferred” incontinence or grooming supplies, recreational activities). There is considerable variation among Operators in what is included in the accommodation cost, and what can be charged extra, and how much can be charged. (16)

The resident “co-payment” ranges from $1005.80 per month to $3,198.50 per month (January, 2016). 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.

Applying for subsidized residential care.

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. (17) After calculations, the health authority informs the Operator of the appropriate client rate and is not permitted to share any income information. (18)

There are many reasons why it may be difficult to obtain this consent and as a result the default position to assess the resident at the highest residential rate 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).(19) Documentation of that legal authority is required.

Hardship Waiver (“Temporary Rate Reductions”)

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 for the resident (or the resident's spouse), the resident or his or her substitute may apply for a temporary reduction of the rate. This rate reduction can last for up to one year, and the person can reapply if the situation continues.

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 are often unaware these waivers exist. They may not know how to apply, or realize the need to re-apply annually. For others, the fact these are referred are called hardship waivers is itself embarrassing and stigmatizing,(20) especially given the fact that many older people and their families do not want to be thought of as “charity cases”.

Some reports suggest that residents' are often turn downed when applying for these waivers. (21) It is also unclear how or whether residents can seek a review of those health authority decisions to decline the waiver request.

Cost of private pay (unsubsidized) residential care facility

In a private hospital or any unsubsidized care bed in a private pay facility, the individuals directly access the residential care services from the Operator.(22) The facility staff conducts an assessment to decide whether or not the facility can provide the services that are being requested. In private pay facilities, the services and accommodation received are part of a private business arrangement between the Operator and the person in care and are defined through the contract.

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.(23)

References

1. There are no specific admission criteria for private hospitals or the private pay beds in residential care facilities, other than the ability to pay. However, most of the people using the resource will have similar care needs to those in a subsidized residential care facility or extended care facility. As the Ombudsperson report The Best of Care (2012) notes all three types of facilities now provide complex care. [page 210]. That report will be referred to as the “Ombuds, Best of Care” throughout this manual.
2. This is determined by the health care tool, the Resident Assessment Instrument (RAI).
3. See for example, Interior Health, which states that the person must also “Have tried all of the avenues available for receiving care at home.” Online: http://www.interiorhealth.ca/YourCare/HousingHealth/ResidentialCare/Pages/Eligibility.aspx (Last accessed January 1, 2016).
4. British Columbia. Health Services. Health and Safety. Long-Term Residential Care. Online: http://www2.gov.bc.ca/gov/topic.page?id=4FEC0F570BC04692810548267D09577E (Last accessed January 1, 2016).
5. Ministry of Health Home and Community Care Policy Manual, Chapter 1, Overview.
6. Alternate Level of Care refers to the transition period between acute (hospital) and post-acute ( non hospital) settings. People in this transition period are referred to as alternate level of care (ALC) patients. Even though they no longer require the intensity or specialized medical care provided by acute hospitals, they are not able to be discharged to the community ( to a residential care facility or “back home”) because the available resources are unable to meet their needs. They may be delayed from being discharged to a post-acute Provider, typically because of lack of appropriate, available space. See: Canadian Institutes for Health Information. November 2012. Seniors and alternate level of care: building on our knowledge. Online: https://secure.cihi.ca/free_products/ALC_AIB_EN.pdf (Last accessed January 1, 2016).
7. Adapted from Best of Care. [pg.34].
8. Ombuds, Best of Care. [pg. 225].
9. Ombuds, Best of Care. [pg. 34]. Also for a good discussion of surrounding the law and ethics of discharge from hospitals to nursing homes and other settings in the Ontario context, see J. E. Meadus & J. A. Wahl. Transfer from hospital to long-term care: reframing the ethical debate from the patient’s perspective. (Toronto: Advocacy Centre for the Elderly, 2008), 4 Online: http://www.acelaw.ca/appimages/file/ACE%20-%20Ethical%20Issues%20&%20First%20Available%20Bed%20Policies%20-%202008.pdf (Last accessed January 1, 2016).
10. Ombuds, Best of Care. [pg. 34].
11. Ombuds, Best of Care. [pg. 33].
12. See for example, Vancouver Island Health Authority Residential Care Guide, pg. 6 [“VIHA”].
13. Home and Community Care. Online: http://www2.gov.bc.ca/gov/theme.page?id=A8F32056E4192102A51A3F0FF373223C
14. Resident Bill of Rights. Online: http://www2.gov.bc.ca/assets/gov/health-safety/home-community-care/accountability/pdf/adultcare_bill_of_rights.pdf (Last accessed January 9, 2016).
15. Residential Care Regulations. B.C. Reg. 96/2009, as amended. Online. http://www.bclaws.ca/Recon/document/ID/freeside/96_2009#section48 (Last accessed January 9, 2016).
16. The Ministry of Health is currently reviewing “Chargeable extras”.
17. HCC Policy Manual. Chapter 7. Client Rates, BC Ministry of Health. Home and Community Care.(“HCC, c. 7”) Online: http://www2.gov.bc.ca/assets/gov/health-safety/home-community-care/accountability/hcc-policy-manual/7_hcc_policy_manual_chapter-7.pdf (Last accessed January 9, 2016).
18. HCC, c. 7.
19. HCC, c. 7.
20. Farrell, J. (July 15, 2013). Why wheelchair fees are not fair and what they say about the state of seniors care in BC. Centre for Policy Alternatives. Online: https://www.policyalternatives.ca/publications/commentary/why-wheelchair-fees-are-not-fair-and-what-they-say-about-state-seniors-care#sthash.y4TGTDck.dpuf (Last accessed January 9,2016).
21. M.Mckinney. (2010. Standards of respect:The human cost of residential care fee increases in British Columbia. Hospital Employees Union. Online: http://www.heu.org/sites/default/files/uploads/2010_Newsletters/StandardsOfRespect_7dec10.pdf (Last accessed May 10, 2016).
22. Ministry of Health. Who pays. Publicly subsidized or private pay services. Online : http://www2.gov.bc.ca/gov/topic.page?id=D2A2D928853B489DBC280E9F451187F1&title=Publicly%20Subsidized%20or%20Private%20Pay%20Services [“Who pays”](Last accessed January 9, 2016). Fraser Health for example notes under “How do I access private pay facilities? that “an assessment by Fraser Health staff is not needed for admission to a private pay residence.” Online: http://www.fraserhealth.ca/your_care/residential_care/options_for_residential_care/ (Last accessed January 9, 2016).
23. Ibid. Who pays.

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

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

In contract law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract, or settlement. See "offer to settle."

A party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court applicant also means the person who starts a court proceeding. See also "court proceeding," "application respondent," and "interim application."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

The geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In property law, the act of an owner of a thing giving ownership of that thing to another person, usually in exchange for money or other property in the case of a sale, or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In law, failing to do something which is either optional or mandatory, such as failing to respond to an application or to a claim within the time limits set out in the rules of court. See "default judgment."

To determine the proper value or worth of something. A lawyer's bill may be assessed by a registrar to determine the actual amount the client should pay. See "appraisal."

In law, (2) a lawsuit, an action, or a cause of action, or (2) the wrongful act of another which gives rise to a claim for relief. See "action" and "cause of action."

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."