Gap in Long-Term Care Admissions Policy Puts High Care Needs Population at Risk

The COVID 19 crisis has placed a spotlight on the limited amount of hands-on care provided to residents in long-term care homes (LTCHs). The latest available Staffing Study prepared by the Ministry of Health and Long-Term Care (MOHLTC) reported that on average, each resident receives 2 hours and 18 minutes of hands-on care from PSWs and 2 minutes of care from nurses, per day. That is a total of 2 hours and 20 mins of care per day, provided mostly by PSWs.

This is obviously not enough care for many higher-needs residents in LTCHs and is why in November 2020, the Province announced its plan to increase the hours of direct hands-on care for each LTCH resident to an average of 4 hours of care per day. The government plans to achieve this target by 2024-2025.

Given the numbers, it is clear that LTCHs are not in a position to provide adequate care for individuals with certain chronic and debilitating conditions. For example, an older adult with an advanced neurological condition, who may take up to 3 hours of PSW time per day just to be safely fed (not including time spent administering medication, toileting, dressing, and completing transfers), is not suitable for a LTCH. Our health care system should identify these individuals and place them in care settings where their basic care needs can actually be met.

What should happen is that an assessment for admission to long-term care (LTC) should identify the total amount of time it will take to meet a person’s basic care needs (feeding, bathing, clothing, medication etc.) and compare that with the amount of care that can reasonably be provided in LTC. If it is clear a person’s care needs can’t be met, then that person should not be sent to a LTCH.

So why do older adults with very high care needs still end up in LTC?  

I regularly hear from disgruntled families, desperate for help, that mom or dad is in hospital, they cannot safely return home given a decline in health, and they should not be placed in a LTCH because their care needs are far too high. Meanwhile, they are being told by the care team at the hospital that these are their only options as they are no longer acute and must be discharged to a different care setting.

The Gap for Older Adults who Require More Care

The problem is partly due to the narrow admission criteria for more appropriate discharge destinations, such as Complex Continuing Care. Complex Continuing Care (CCC) is post-acute care intended for patients with medically complex and specialized needs. There are no legally mandated criteria for admission to CCC, but usually, to be eligible, a person must require care that involves ventilation, a G-Tube, and/or tracheotomy care. In other rare cases, a person may be placed in CCC if the Local Health Integration Network which is the body that determines LTC eligibility (and is often referred to as a LHIN and pronounced “Lin”) finds someone ineligible for LTC because their care needs are too high.

A finding of ineligibility for LTC is important because it is usually what triggers the health care team at the hospital to make referrals to other appropriate areas of the hospital, including CCC. It also prevents the hospital from charging the patient/family an uninsured rate for their continued stay in hospital. Generally, the LHIN and the hospital work together when it comes to patient discharge. The hospital is eager to free up hospital beds and, in my experience, the care team is unlikely to make a referral to a destination other than LTC, unless the LHIN has specifically found a patient ineligible for LTC.

There is no legally mandated cut off for those who require too much care

In my experience, it is also rare for the LHIN to find someone ineligible for LTC, because there care needs are too high. This is because there is no specific limit or cut off in the assessment tool. There is no specific section of the assessment which calculates the quantity of care a person requires. Furthermore, there is no specific policy from the MOHLTC that the LHIN can apply to help determine ineligibility based on the quantity of care.

Usually, what happens with high-needs older adults is that they are assessed for LTC eligibility while in hospital and found eligible for admission. If the patient or his or her substitute decision-maker refuses an offer to admit when a bed becomes available, the hospital can begin charging the ‘uninsured daily rate’ (“uninsured rate”), which is not legally capped. The uninsured rate ranges from $250.00 a day to $1,500.00 per day. Most families cannot afford to pay this and feel that they have no choice but to have their high needs family member admitted into LTC.

In a recent case of mine, I was advised by the LHIN that there is a benchmark of sorts relating to the number of hours of DIRECT NURSING CARE (not PSW care) required. If the care needs exceed the benchmark, then referrals to CCC are often made. There are, however, no legislated maximums for personal support services in LTCHs that would deem a person ineligible for admission due to high care needs. The LHIN took the position that it is up to each LTCH to review the client’s care needs and to make their own determination about whether they would admit the patient.

The LHIN’s position is problematic for two reasons: 1) the law is clear that it is the LHIN’s responsibility (s. 43 of Long-Term Care Homes Act), not the long-term care home’s responsibility, to determine a person’s eligibility; and 2) Long-term care homes cannot refuse admission to individuals on the basis that they require too much care. Legally, a home can only refuse admission for one of two reasons: 1) the home does not have the physical facilities necessary to meet the client’s care requirements (for example, the hallways of a home that was built years ago cannot accommodate a person’s wheelchair); or 2) staff members lack the nursing expertise necessary to meet the client’s care needs (expertise NOT quantity of care).

The result is that residents are admitted to LTC even though their needs cannot be supported. In turn, this results in hardship for the patient and can lead to nursing home negligence and/or a wrongful death claim.

So, what can you do if you are in a situation where you believe the LHIN has failed to complete an adequate assessment for LTC?

The Long-Term Care Homes Act only sets out an appeal process for a person who is found INELIGIBLE, but that is not the issue in these cases. The issue is that a person has care needs that are too high and should NOT BE ELIGIBLE for LTC.

First, a complaint can be made to the LHIN with a demand for a reassessment of long-term care eligibility. If not successful, an urgent application for judicial review can be brought. On an application for judicial review the Court has the power to determine whether the LHIN properly exercised its authority and applied or interpreted the law correctly. The Court has the power to alter or set aside the LHIN’s decision. Timing is important as an application for judicial review should be brought within 30 days after the date of the LHIN’s determination.

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