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HomeMy WebLinkAboutPD-213-92 THE CORPORATION OF THE TOWN OF NEWCASTLE DN: BOARDING.GPA REPORT Meeting General Purpose and Administration Committee File #' Date Monday, October 5, 1992 Res 9 90 - Alii Report# PD-213-92 File # By-Law 16 Subject MODEL-BOARDING HOME BY-LAW Recommendations, It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD-213-92 be received; 2 . THAT the Region of Durham be advised that the Town of Newcastle will not proceed to pass a Boarding Home By-law and will determine its future course of action when the outcome of the Provincial Government response on the Report of the Commission of Inquiry into unregulated Residential Accommodation is available or upon further direction from the Region. 1. BACKGROUND: 1. 1 Discussion with Regional staff in early 1990 concluded that there is a need to standardize all boarding home by-laws in all local municipalities within Durham. As a result, the Region, through it's Legal Department has drafted a Model Boarding Home By-law and Regional Council subsequently requested the local municipalities to either amend or pass a by-law to regulate boarding homes. Town Council subsequently referred this matter to staff for a report. 1. 2 Since then, Staff have been working on a draft by-law for the Town and there have been ongoing discussion with the staff from the Regional Solicitor's office and from the Health Department. 2 REPORT NO. : PD-213-92 PAGE 2 1. 3 In July, 1992, Regional staff advised Town staff that there may be problems associated with the passing of a Boarding Home By-law in light of the recent findings and recommendations from the Commission of Inquiry into Unregulated Residential Accommodation. To assist local staff and other interested parties in the understanding of the potential problem, the Region's Health and Social Services Committee invited Dr. Ernie Lightman, the Commissioner of the Inquiry to give a brief presentation on the subject matter on September 17, 1992 . The Director attended the presentation and wish to advise Council as follows. 2. COMMENTS: 2 . 1 Dr. Lightman's Report, entitled "A Community of Interests" contains many recommendations. A copy of the Report's executive summary is attached herein. 2 .2 Subsequent to the review of the recommendations contained in the Executive Summary, it appears that Dr. Lightman is suggesting the Provincial Government to take a more active role in the regulation of boarding homes with the municipal government taking parts only in registration and enforcements of those regulations under local municipal jurisdiction only (e.g. Fire Code, Building Code, etc. ) . Dr. Lightman, in his presentation, also pointed out that a municipal boarding home by-law that deals with the "care" of the residents in a boarding home may be beyond the jurisdiction of the municipality. 2 . 3 In view of Dr. Lightman's Report, staff is of the opinion that the Town should not proceed on the passage of any . . . 3 REPORT NO. : PD-213 -92 PAGE 3 boarding home by-law at this time until such time we receive clear indication from the Provincial Government as to how it proposes to implement Dr. Lightman's recommendation. 2 .4 In discussion with Regional Staff, we understood that Dr. R. Kyle, the Medical Officer of Health will be presenting a report to Regional Council with respect to the future direction on the model boarding home by-law. Staff will monitor this matter both at the Regional level and at the Provincial level and will advise Council when circumstances warrant future decision by Council. 2 .5 Since the Regional Council originally requested Town Council to pass a Model Boarding Home By-law, the Region should be advised of Town Council's position on this matter. Respectfully submitted, Recommended for presentation to the Committee Franklin Wu, M.C. I.P. Lawrence E. Ko seff Director of Planning Chief Adminisative and Development Officer (( FW*j ip *Attach 24 September 1992 11 ■ Community of I nte r THE REPORT OF THE COMMISSION OF INQUIRY INTO UNREGULATED RESIDENTIAL ACCOMMODATION ERNIE S . LIGHTMAN, PH. D . Commissioner © Queen' s Printer for Ontario, 1992 1 � v Y r r: # ; n i ; non n Y \ / LAVUU L1 V U^ Qu 111CA1 y his Commission was created following the death of Joseph Kendall, a resident of Cedar Glen, an unregulated boarding home near Ornllia, Ontario. The coroner's inquest into Mr. Kendall's death was the longest in Canadian history and produced more than eighty recommendations; key among these was that a Commission be appointed to inquire into unregulated residential accommodation in which vulnerable adults reside. This Commission was appointed two days after the coro- ner's report was filed, in November 1990, and began its work on January 1, 1991, under the Public Inquiries Act. The Com- mission produced a widely circulated Discussion Paper in March 1991, which defined certain parameters for the Inquiry and raised several central questions for examination. The Commission consulted extensively, travelled to several com- munities across Ontario, visited a great variety of boarding, rest, and retirement homes, and met with residents, members of the public, and interest groups. We received some 230 writ- ten submissions. Many vulnerable adults in Ontario live in unregulated set- tings, from luxury retirement homes to boarding/lodging/rest homes in which residents' only source of income may be social assistance [Family Benefits/GAINS(D) or General Wel- xi G a xii Executive Summary x 1 Other than fire, public health, fare Assistance (GWA)J, or Old Age Security (and its supple- and construction standards that apply to all prennses ments) The accommodation is "unregulated" because there are no provincial licensing, standards, or inspection, nor are there other viable protections for the lives and well-being of residents. All premises within the scope of this Inquiry offer residents housing and limited care services (assistance with the activi- ties of daily living), often some or all meals are provided. Vir- tually all are operated on a commercial or for-profit basis. Some are very small; one facility has 450 beds. Research con- ducted for the Commission uses census data to estimate there are 47,500 vulnerable adults living in unregulated accommo- dation in Ontario. Some of the settings visited by the Commission appear to be exemplary: residents seem well cared for and content. Other premises revealed inadequate physical environments and unacceptably low-quality care: abuse of residents—physi- cal, emotional, financial, and sexual—may occur with great regularity. It is our general view that any setting in which both accommodation and care are supplied by operators creates a power imbalance between sellers and buyers, and the poten- tial for abuse of this power. The principal aim of this Inquiry has been to redress these structural imbalances, to empower vulnerable adults who live in unregulated settings, and to assist them to assume control of their lives to the maximum extent possible. Such control includes making decisions about where, how, and with whom to live. An allied goal of the Inquiry is to offer protection to those residents of rest homes who wish it. The Commission considered two broad approaches: 1. Comprehensive regulation by the government of Ontario, on the nursing-home model, or by municipalities through municipal by-laws. This approach would involve mandatory minimum stan- r Executive Summary xiii dards set by government (provincial or municipal); govern- ment inspection; and, possibly._Government funding to ensure these standards can be met. The rest home would be viewed as an institution, part of a continuum of institu- tional care—in effect, a low-level, care-providing commer- cial nursing home. 2. Aivempowerment-approach;-.infwhich�residents are giydrf-1rights=aiid'the_meansAo_ensure-that-these_rights-area respected,;combined with limited regulation to'attain minf- mum'standards--in areas where a rights-based approach is" unlikely_to be_effectiv�.,3 This approach considers the rest home to be a perma- nent community residence rather than a place of tempo- rary sojourn or a first-stage, low-level nursing home. The Commission rejects the first alternative. The protections promised by comprehensive regulation are uncertain, the empowerment of residents modest or non-existent. This approach would also be costly to deliver and enforce; experi- ence in other areas—particularly the nursing-home sector— also suggests there are many technical and operational obsta- cles to effective regulation. The.:.Commiss ion-recommends the second alternative, which should better achieve_empowerment and_protection;at lower overall cost.- f To view the rest home as a form of permanent community housing is compatible with recent government directions: the development of new care-giving institutions is not being con- templated today. Instead, the goal is community care: to serve care needs in the community whenever possible; to lower the rate of institutionalization; and to limit institutional beds to those whose care needs are so high that they cannot be met in the community. As well, recent initiatives favour delinking (or separating) accommodation from the provision of care. The former would be provided by landlords and the latter delivered by non-profit community-based agencies to people 11 � in their own homes Those for whom rest homes are home would then be fully eligible for all in-home services now -vaila'vlc or developed in future under the long-term-care ini- tiative We define "rest homes," whether retirement or boarding homes, as residences in which owners/operators provide or are paid to provide care services, or cause others to under- stand that they provide care. We call for mandatory Tegistration of akl rest homes with the municipalAy Registration merely makes rest-home opera- tors known to municipal authorities: it is not dependent on meeting particular standards, and registrations, unlike nursing home licences, cannot be bought or sold Registration will end the current practice by which rest homes may operate totally unknown to any level of government. The Commission recommends a multi-faceted approach to empowerment while offering protection to rest-home resi- dents. Specific elements include the following: 1. a Rest Home Residents' Bill of Rights, which contains protections and entitlements regarding the physical accom- modation and the quality of care; 2. a Rest Homes Tribunal (RHT), through which residents, with assistance as desired, will seek enforcement of the protections and entitlements set out in the bill of rights; the RHT is premised on adequate advocacy supports, both informal—by relatives and friends—and those to be creat- ed under Bill 74, the proposed Advocacy Act, 1991; 3. mandatory reporting of abuse in rest homes; 4. a police check of operators through the Canadian Police Information Centre to determine any criminal record, prior to registration; 5. clarification of minimum safety standards regarding health, fire, and the physical environment, including the Building Code and municipal occupancy by-laws. (In con- sidering minimum standards, the Commission has been particularly concerned to avoid the loss of low-income 3 (/9 i� Executive Summary xv housing that might follow from standards—and costs—that 2 Accommodation exempted from the LTA based on these are too high.) r—­na 7rd Aso be ePpmnted The Commission also proposes to increase the account- from our definition of a "rest ability of local inspectors to residents for non-response or home." delayed/inadequate response to residents' complaints. No inspection visit should be announced in advance; 6. mandatory minimum staff-to-resident ratios in all rest homes at all hours. These ratios will be premised on a safety function, i.e., in case of emergency, staff will be expected to obtain appropriate assistance expeditiously. The ratio is not premised on staff providing ongoing care to residents; 7. a minimum "competence" standard for all staff who assist with medications. Operators should not be required to assist residents with medications; however, should they choose to do so, staff must be adults, able to read and fol- low prescribed directions, and able to identify and commu- nicate with each rCsident. They will not be required to have any medical training. Following directly from our view of the rest home as perma- nent residential accommodation, the Commission also recom- mends: 1. coverage of all rest homes under Part IV of the Landlord and Tenant Act(LTA); 2. coverage of all rest homes under the proposed Rent Control Act(RCA). These coverages should address many of residents' most com- monly expressed problems, including capricious temporary or permanent eviction; failure to respect residents' privacy; denial of access to visitors; and sudden steep rises in costs. We have also recommended criteria for LTA coverage for group homes, supportive housing, and rehabilitative and ther- apeutic residences.2 Amendments to the LTA and proposed RCA are necessary n t xvi Executive Summary to accommodate the special nature of rest homes. For exam- ple, eviction of a tenant can be tune-consuming an-? difficult under the LTA; yet in some cases, particularly where accom- modation is shared and living is communal, rapid departure is essential Residents' care needs may suddenly exceed those that can be met in a rest home (either with operator- or com- munity-supplied services); the result may be severe disruption of the residence and even physical danger to operators and other residents. The Commission is satisfied there are sufficient grounds for eviction under the LTA, but timeliness is a problem. We rec- ommend a new "fast-track" procedure under LTA through which operators will be able to obtain interim orders to tem- porarily remove residents from the premises when the behaviour of those residents likely meets existing grounds for eviction, and when delay is likely to cause serious harm to the person or property of operators or other residents. Our approach to rent control differs from that of the February 1991 Ministry of Housing Green Paper on Rent Con- trol. That document would have required operators to "debundle" (i.e., sell separately) accommodation and care ser- vices; all care would be sold as optional extras We recom- mend that operators be permitted to sell a mandatory package including accommodation, meals, and care services. However, whatever is sold on a mandatory basis must be fully subject to rent control. The prices of optional care services will not be controlled; however, the timing of increases will be restricted, access to alternative providers must be available, and resi- dents must have the opportunity to move out when prices of optional services rise. With respect to retirement homes, whose residents have relatively high incomes, government's primary interest is to ensure that the market works as it should: operators must pro- vide full pricing information to all potential residents, includ- ing a posted "rate sheet" and history of recent price increases. (They must also describe, in writing, any emergency-response r� ; i Executive Summary xvii system, including details of any commitment to a particular resnorzse- anv staffine levels above legal requirements; and any internal complaint procedures.) The Commission recommends that domiciliary hostels— rest homes in which residents are funded through GWA—be phased out as rapidly as possible. Currently, private operators may be paid a per diem (up to $1,015 per month) to provide accommodation, meals, and care services for each of about 4,500 vulnerable adults, most of whom have psychiatric and/or developmental disabilities. Accountability of operators is often limited or nonexistent. In our view, operators of hos- tels should not be funded through a per diem to assess and meet care needs of residents; as quickly as possible, they should come to approximate traditional landlords. We recommend that hostel residents who so desire should be assisted in leaving the hostels and reassigned to an appro- priate category of social assistance. This will usually involve a shift from municipally administered GWA to provincially administered Family Benefits, potentially saving a municipality as much as $203 per resident per month. The difference between current funding to operators and social assistance should be made available for the develop- ment and delivery of community-based care services. Resi- dents should have a primary role in identifying, arranging, and, when possible, delivering these care services. Additional funding of about $1,000 per resident per year should be pro- vided to approximate the cost of comparable community ser- vices currently provided to similar populations. As interim measures, we recommend that all hostel con- tracts under GWA be limited to one-year renewable terms; and that the province set a maximum total-bed capacity for each domiciliary hostel. We also believe that operators should be prohibited from involvement in the distribution of the per- sonal-needs allowance (PNA) to hostel residents. The Commission also recommends: ttSJ � t J � xviii Executive Summary 1 that coverage of rest homes under the Workers'Compen- Slat1oYl Art nnri F7�s1^,, '� �'�lJaZdr Lii�r�lt� �iT�3iiSisi3iiii fil:t (HLDAA) be consistent with the definition of rest homes as residential settings, not Institutions; 2. that the Planning Act be amended to make accessory apartments and rooming, boarding, and lodging houses an as-of-right use in all zones where residential uses are per- mitted, 3. that a pilot project be considered, as resources permit, to implement full community-based services in one or more communities; and that Windsor be considered for inclusion in such a pilot project; 4. that the Residential Services Branch develop a precise legal definition of a nursing home, and that rest homes that offer high levels of care and serve, in effect, as "bootleg" nursing homes without nursing-home licences, cease offer- ing nursing-home levels of care; 5. that the Ministry of Health investigate the quality of medical care delivered to residents in rest homes, and the billing practices of doctors (including "house doctors") who regularly claim for multiple and sequential home visits in rest homes. In an Appendix to the Report, the Commission also suggests that the announced intention of the government of Ontario to eliminate the funding differential between nursing homes and homes for the aged be deferred pending clear evidence of effective accountability to residents in nursing homes. Much of this Report focuses on residents' day-to-day prob- lems and quality of life. We argue that the protections promised by comprehensive regulation would not be effec- tive. Instead, a variety of remedies and avenues for redress should be available to residents; we believe that, overall, such measures will be more powerful and more accountable: 1 violations of the residents' bill of rights may be pursued il Executive Summary xix through the Rest Homes Tribunal, which will have avail- able a wide array of remedies from mild reprimands, through orders to do or cease doing something, to perma- nent closure of premises and banning of individual opera- tors from the industry; 2. the LTA and/or rent control may offer remedies for vio- lations of the terms of the lease (mandatory package), including permanent or temporary abatement of rent and termination of lease, and 3. violations with respect to commercial contracts for optional services may be pursued through the courts. In summary, this Report has placed before the people and government of Ontario a number of responses to the many problems identified in rest homes To do nothing is unaccept- able: abuses continue to be identified, and the quality of resi- dents' lives in too many cases is frankly appalling. To regulate comprehensively, creating, in effect, a new set of care-giving institutions would be costly, and the outcome very uncertain. An approach based on empowerment, which we endorse, has the potential to do more, and at less cost. However, the empowerment must be practical and operational, not merely theoretical—and this, ultimately, is the greatest challenge Ontarians face.