Adopted a little over a year ago, the Act to amend various legislative provisions concerning health and social services in order, in particular, to tighten up the certification process for private seniors’ residences (commonly known as “Bill 16”) made substantial amendments to the division of the Act respecting health services and social services (the “AHSSS ”) in respect of governing private residences for senior citizens. Although the amendments made were significant in themselves, it was difficult to assess their concrete impact until the related regulation was made public, which occurred only very recently.

In fact, it was only on February 27, 2013 that the Regulation respecting the conditions for obtaining a certificate of compliance and the operating standards for a private seniors’ residence was officially published. The Regulation follows in the footsteps of the 2011 amendment by providing for the tightening up of the conditions governing the obtaining and maintenance of certification for private seniors’ residences. Although several of the Regulation’s provisions will only come into force over time, the essential provisions of the Regulation came into effect on March 13, 2013.

Categories and Sizes of Residences

The Regulation identifies two categories of residence, for which certain distinct “categories of service” must be offered: 1) residences whose services are intended for “independent elderly persons”; and 2) residences whose services are intended for “semi-independent elderly persons”. For example, a residence for semi-independent elderly persons must offer a service falling within the category of “personal assistance services” or the category “nursing care”. In addition, certain “health and social criteria” provided for in the Regulation differ, depending upon the category to which a residence belongs, including criteria related to the type of skills required of the “care attendants” working there. It is also noteworthy that nothing prevents a residence from belonging to both categories simultaneously, as long as the criteria applicable to each of them are met.

On the other hand, the Regulation applies differently to residences depending on their actual size. In particular, “micro-residences” (housing fewer than six residents) and “small residences” (housing six residents or more but containing fewer than ten rooms or apartments) are exempted from certain obligations, whereas the minimum number of care attendants required will vary, depending on the number of units and the category of the residence. For example, in a residence for independent elderly persons having more than 200 units, two care attendants must be present at all times to provide supervision, whereas in respect of a residence for semi-­independent elderly persons, three care attendants are required.

Certification

As provided by the AHSSS, the classification “private seniors’ residence” is henceforth strictly reserved to residences already holding or in the process of applying for a certificate of compliance.

Additional conditions to those set out in the AHSSS are laid down for an establishment, in order for it to be granted a “temporary certificate of compliance” – a document necessary in order to begin operating a residence. Certain specific information, declarations, attestations and documents must be provided to the health and social services agency by the person making such an application.

As for those residences already holding an attestation or a certificate, the Regulation lays down health and social criteria, as well as operating standards, to be complied with in order that they may be issued or maintain a “certificate of compliance”. The aforementioned documents and information must also be provided again when a certificate of compliance is renewed, unless the operator of the residence attests that they remain unchanged.

Measures Affecting Officers and Directors, Staff Members and Volunteers

A major innovation is that the Regulation establishes certain specific obligations regarding the training of staff working in residences; namely, a reception and job induction program for new employees; ensuring that all care attendants hold attestations of training in cardiopulmonary resuscitation, standard first aid and the safe movement of persons; ensuring that all care attendants hold a vocational education diploma in the fields of “Assistance in Health Care Facilities” or “Home Care Assistance” or that they have obtained an official document certifying their competency in caring for the elderly in an institutional setting.

Staff members and volunteers will henceforth be subject to the verification of their criminal records, as will employees supplied by placement agencies. In addition, officers and directors, among the other written declarations required to operate a residence, must provide a declaration concerning “any charge or conviction” recorded against them.

Furthermore, the adoption of a “code of conduct” setting out “expected practices and behaviour toward residents”, is now compulsory. The operator of a residence must ensure that every person working in the residence, including directors, sign a written undertaking to comply with the code of conduct and ensure that it is duly enforced in practice.

Other Measures to Improve the Health, Well-Being and Safety of the Residents

A written lease must now be concluded between the parties, the conditions of which may not be modified during its term. Moreover, even before any such lease is entered into, the Regulation provides that a document must be given to potential “tenants”, providing them with specific information regarding the rules of operation of the residence, the services it provides and the related costs. A separate file must be opened for each resident and kept confidential.

As far as new “safety” standards for residents are concerned, particular mention must be made of the existence of a minimum number of staff members required to be present at all times, which number will vary depending upon the category and the size of the residence concerned as discussed hereinabove. In addition, residences must henceforth install a “call-for-help” system, adopt a “fire safety plan” and keep same updated, and establish procedures to be followed in the case of danger to the life and integrity of a resident, or the death or unexplained absence of a resident, or in the event of a heat wave advisory. Finally, a “register of incidents or accidents” must be kept in each residence and a person responsible for its upkeep must be designated.

There are also measures designed to improve the quality of life of residents, such as the obligation to offer menus that conform to Canada’s Food Guide, as well as “organized recreation and entertainment activities” that “promote socialization”.

Standards

Under the Regulation, an agreement must be concluded between each residence and the health and social services centre for the territory where it is located, “setting out how health services and social services will be dispensed to the residents by the local authority, undertakings made by the local authority and the operator in that respect and any other modality concerning their cooperation.”

The agencies are also granted additional powers to verify compliance with the conditions laid down by the AHSSS and the Regulation. No prior notice of such inspections is required.

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Since the essential provisions of the Regulation came into force on March 13, 2013, an understanding of the nature of the regulatory amendments to the existing regime and the changes that have become compulsory is crucial in determining steps to be taken to secure compliance. In particular, operators of private seniors’ residences must ensure that their policies and procedures comply with the obligations that are now applicable, that the compulsory training programs that will have to be provided are planned, and that the order of priority of the changes foreseen is orchestrated, having regard to the dates when those measures will come into force.

The members of BLG’s Seniors’ Residential and Long-Term Care Operators Group can answer your questions and provide you with all necessary assistance to secure the smooth transition to this new system governing the certification and supervision of private seniors’ residences.

Expertise

Senior Living and Housing