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Law Times • augusT 23, 2010 FOCUS PAGE 13 Regulatory statute to oversee elder care facilities BY DARYL-LYNN CARLSON For Law Times cknowledging that there is a sig- nifi cant aging demographic in the province, the Ontario govern- ment passed legislation earlier this year that provides a comprehensive regulatory system for retirement homes. Under the Retirement Homes Act, A all retirement homes in the province will be subject to government regulation de- signed to protect the rights, safety, and care of residents. "I think what we're seeing is just the tip of the iceberg in terms of legal changes and new laws that acknowledge that the baby boom generation is aging," says Daniel Fabiano, an associate at Fasken Martineau DuMoulin LLP whose corpo- rate commercial practice includes public- sector health care. He says the legislation is signifi cant because it grants a broad range of regu- latory powers to the government for the fi rst time. Th e legislation creates a Retirement Homes Regulatory Authority that will be managed by a board of directors and include a registrar, complaints review of- fi cer, and risk offi cer who will administer and enforce the act. As a result, the bill will create a new focus for lawyers who practise health law because the scope of the standards will re- quire them to review the corporate struc- ture of all retirement home clients. Within the bill, Fabiano cites three sig- nifi cant areas that lawyers will have to be aware of. First, the licensing requirement en- ables the province to ensure an applicant facility's leadership meets criteria related to its character, competence, and fi nancial capacity. Th e second signifi cant criteria enables the province to send an inspector to the proposed location to ascertain whether the facility meets the care standards set out in the legislation. Th ird, the legislation takes into ac- count the rights of residents in order to protect their dignity with respect to care services including feeding, bathing, dress- ing, and personal hygiene. Th e new regulatory regime empowers the province to inspect all retirement fa- cilities on a regular basis. As a result, law- yers will increasingly be retained to assist qualifi ed facilities with their legal obliga- tions, says Fabiano. "Th is will signifi cantly impact how re- tirement homes are run, and so it will re- quire lawyers to be on hand and to advise in each step of the process," he says. "Lawyers will have to be involved from both a business perspective and an administrative perspective" to assist re- tirement home clients with all means of compliance, he adds. In an article for the Ontario Bar As- sociation's health law section newsletter in June, Torkin Manes LLP's Lisa Corrente points out that a retirement home "is de- fi ned as a residential complex, or part of a residential complex, (i) that is occupied primarily by residents who are at least 65 years old; (ii) that is occupied or intended to be occupied by a prescribed number of residents who are not related to the op- erator; and (iii) where the operator makes at least two care services, directly or indi- rectly, available to residents." In further explaining the language of 'I think what we're seeing is just the tip of the iceberg in terms of legal changes' related to Ontario's aging demographic, says Daniel Fabiano. the legislation, she notes that care services "include such services as assistance with feeding, bathing, dressing, personal hy- giene and ambulation, continence care, the administration of a drug, a health care service provided by a regulated health professional, or the provision of a meal." She notes that facilities such as long- term care homes, homes for special care, and hospitals are expressly excluded from the defi nition of a retirement home and will therefore not be governed by the new legislation. But for those facilities that require li- cences under the new legislation, there are ongoing compliance requirements they will have to meet related to residents' rights, care, and safety. Th e registrar will be required to promptly review any com- plaints with the authority to inspect the property and investigate any allegations of improper care, unlawful conduct, abuse or neglect. Existing homes will be grandfathered into the legislation, meaning lawyers will be called upon to assist clients with all means of compliance. Tracey Tremayne-Lloyd, a partner and health law practitioner at Gardiner Roberts LLP, says the legislation could also require families to seek legal advice to ensure the best care for aging family members. She points out that the legislation en- ables families to make decisions on behalf of their elderly relatives if there has been a breach in protocol by an institution that's providing care. "If lawyers are approached by family to move their elderly parents and don't know which way to turn, lawyers will need to be aware of the fact that they can apply for this change category and make an appli- cation to help families fi nd ways to help their elderly family members," she says. "Th is new legislation will provide much more control in the best interest of the el- derly and their families." Besides the retirement home bill, there have been changes proposed to Ontario's privacy legislation that will aff ect the way lawyers advise hospitals. Following Ontario's eHealth scandal, the premier has promised to make health care in the province more transparent to enable the public to scrutinize hospital operations as well. LT Accurate • Reliable • Up-to-date Your source of essential legal contact information from Canada Law Book's renowned directories group. Find the names and numbers you need in the Atlantic provinces – and in Alberta, Northwest Territories, Yukon and Nunavut. 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