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ONTARIO REGULATION 53/12

made under the

RETIREMENT HOMES ACT, 2010

Made: April 4, 2012
Filed: April 12, 2012
Published on e-Laws: April 13, 2012
Printed in The Ontario Gazette: April 28, 2012

Amending O. Reg. 166/11

(GENERAL)

Note: Ontario Regulation 166/11 has not previously been amended.

1.  Ontario Regulation 166/11 is amended by adding the following section:

Retirement Homes Regulatory Authority

Board of directors

4.1  For the purposes of subsection 12 (15) of the Act, the first election of the directors mentioned in subsection 12 (7) of the Act shall take place before December 31, 2012.

2.  The Regulation is amended by adding the following section immediately after the heading “Operation of a Retirement Home”:

Deemed licensee

4.2  For greater certainty, a person who operates a retirement home and who is deemed under subsection 33 (2) of the Act to be licensed under the Act to operate the home until the time specified in that subsection shall be deemed to be a licensee until that time and a licence that expires at that time shall be deemed to have been issued under the Act for the home.

3.  (1)  The Regulation is amended by adding the following section:

Extra expense insurance

5.1  (1)  In this section,

“authorized insurer” means an insurance provider licensed under the laws of a jurisdiction in Canada to undertake insurance; (“assureur agréé”)

“extra expense insurance” means an insurance policy with respect to a retirement home under which the insurer undertakes to pay for the additional costs of providing reasonable alternate accommodation and care to residents of the home for a period of no less than 120 days if, as a result of loss or damage to the home,

(a) the licensee is unable to safely provide the normal accommodation or care in the home to those residents, and

(b) the loss or damage is a peril for which insurance is reasonably available. (“assurance des frais supplémentaires”)

(2)  For the purposes of paragraph 4 of section 35 of the Act, it is a requirement for the issuance of a licence to operate a specific retirement home that the applicant has demonstrated that the applicant has obtained extra expense insurance with respect to the home, or will obtain it, from an authorized insurer and will maintain it in full force and effect beginning no later than January 1, 2014 for as long as the applicant operates the home.

(3)  Nothing in this section overrides or affects anything in the Insurance Act that would otherwise apply with respect to an authorized insurer.

(2)  Section 5.1 of the Regulation, as made by subsection (1), is amended by adding the following subsections:

(2.1)  For the purposes of subsection 60 (3) of the Act, every licensee of a retirement home shall at all times, beginning no later than January 1, 2014, maintain in full force and effect extra expense insurance from an authorized insurer.

(2.2)  For the purposes of subsection 108 (1) of the Act, the Registrar may at any time request that a licensee give the Registrar a certificate of insurance issued by an authorized insurer that demonstrates that the licensee has the extra expense insurance required by subsection (3) and the licensee shall provide the certificate within the time period specified by the Registrar.

4.  (1)  Paragraph 3 of section 11 of the Regulation is revoked.

(2)  Section 11 of the Regulation is amended by adding the following paragraph:

3. An explanation of the procedures to be followed in the case of an evacuation.

(3)  Section 11 of the Regulation is amended by adding the following subsection:

(2)  An operator of a retirement home who is not licensed under the Act shall ensure that the following information is posted in the home in a conspicuous and easily accessible location: information about reporting to the Registrar matters relating to the care and safety of the residents of the home that is on a sign that the Registrar provides or that is in a form that the Registrar approves.

(4)  Subsection 11 (2) of the Regulation, as made by subsection (3), is revoked.

5.  Subsection 17 (2) of the Regulation is revoked and the following substituted:

(2)  Every licensee of a retirement home shall ensure that bathrooms in common areas of the home that are used by residents are adequately stocked with supplies including toilet paper.

6.  Subsection 42 (6) of the Regulation is revoked and the following substituted:

(6)  If a resident who receives care under the program is exhibiting altered skin integrity, the licensee shall ensure that the resident immediately receives the required treatments and interventions under the supervision of a member of the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario.

(7)  If a resident who does not receive care under the program is exhibiting altered skin integrity and the licensee or staff of the home are aware or ought to be aware of the resident’s altered skin integrity, the licensee shall ensure that the resident and the resident’s substitute decision-makers, if any, are immediately informed about the risk of harm to the resident and options for obtaining the required treatments and interventions under the supervision of a member of the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario.

7.  Subsection 48 (2) of the Regulation is amended by adding “For the purposes of paragraph 2 of subsection 62 (9) of the Act” at the beginning.

8.  The Regulation is amended by adding the following section:

Frequency of inspections

58.1  For the purposes of subsection 77 (3) of the Act, the Registrar shall ensure that every retirement home in respect of which a licence has been issued is inspected under the Act at least once every three years.

9.  Section 60 of the Regulation is revoked and the following substituted:

Inspection of retirement home

60.  For greater certainty, if a complaint received under subsection 83 (1) of the Act with respect to a retirement home or information that the Registrar receives indicates that a contravention of section 115 of the Act may have occurred, the Registrar may, if the Registrar considers it appropriate, have an inspector visit the home.

10.  The Regulation is amended by adding the following section:

Administrative penalties

60.1  (1)  For the purposes of section 93 of the Act, the Registrar shall determine the amount of an administrative penalty for a contravention of a requirement under the Act in accordance with the following rules:

1. The Registrar shall determine whether, in his or her opinion, the contravention had a major, moderate or minor adverse effect, or the potential to have such an adverse effect, on residents of a retirement home or other persons.

2. The range for the administrative penalty is set out in Column 2 of the Table to this subsection opposite the determination set out in Column 1 as described in paragraph 1.

3. The amount of the administrative penalty for the contravention is an amount selected by the Registrar from within the range described in paragraph 2 after considering the following criteria:

i. The extent to which the person who committed the contravention has mitigated the adverse effects of the contravention or the potential for the contravention to adversely affect residents of the retirement home or other persons.

ii. Whether the person who committed the contravention has previously contravened any requirement under the Act.

iii. Whether the person who committed the contravention derived any economic benefit from the contravention.

iv. The purpose of the administrative penalty as set out in subsection 93 (2) of the Act.

TABLE
RANGE OF ADMINISTRATIVE PENALTIES

Column 1

Column 2

Severity of adverse effect or potential adverse effect

Range

Major

From $2,500 to $10,000

Moderate

From $1,000 to $5,000

Minor

From $100 to $2,000

(2)  A person ordered to pay an administrative penalty is required to pay the penalty within 30 days of being served with the order or whatever other longer period that is specified in the order.

11.  Section 61 of the Regulation is revoked.

12.  (1)  Section 64 of the Regulation is amended by adding the following subsection:

(4)  This section applies only on and after the day the first election of directors of the Authority takes place under subsection 12 (7) of the Act.

(2)  Subsection 64 (4) of the Regulation, as made by subsection (1), is revoked.

13.  The Regulation is amended by adding the following sections:

Emergency Fund

Administration of the Fund

64.1  (1)  The Authority shall hold the Fund in trust for the benefit of residents and former residents whom the Registrar approves to receive the benefit of a payment under section 64.3 or 64.4.

(2)  The Fund consists of money paid into the Fund under subsection (3) or (4), all administrative penalties collected by the Authority and all income on money paid into the Fund.

(3)  The Authority may make payments into the Fund.

(4)  The Authority may borrow money to supplement the Fund and shall pay the borrowed money into the Fund.

(5)  No payments shall be made out of the Fund to satisfy or settle any claim or judgment or other court order resulting from the fraud, negligence or wilful misconduct of the Authority, its officers, directors, employees or agents.

(6)  The Authority shall hold the Fund in an interest-bearing account at a financial institution as defined in subsection 57 (1).

(7)  At the Minister’s request, the Authority shall make available to the Minister any information, books, records or documents that it keeps respecting the affairs of the Fund.

(8)  The Authority shall have the Fund audited annually by a public accountant licensed under the Public Accounting Act, 2004 and shall include the results of the audit in the Authority’s annual report required under section 31 of the Act.

(9)  At the Minister’s request, the Authority shall immediately have the Fund audited in the manner that the Minister requires and shall make the results of the audit immediately available to the Minister.

(10)  The Authority shall assist the auditors in performing any audit requested by the Minister under subsection (9) and shall provide any books, records or information that may be required to complete the audit.

Claims

64.2  (1)  An individual may make a claim to the Registrar for payment of compensation from the Fund if,

(a) the individual is a resident of a retirement home or was a resident of a retirement home immediately before the event giving rise to the claim arose;

(b) the claim is for the additional costs that the individual incurred to obtain reasonable alternate accommodation and care for a period of no more than 120 days if, as a direct result of emergency circumstances arising from loss or damage to the home, the operator was unable to safely provide the normal accommodation or care in the home to the individual;

(c) the individual and the operator have taken, both before and after the event giving rise to the claim arose, all reasonable steps to mitigate the costs mentioned in clause (b);

(d) the individual makes the claim in the form and manner required by the Registrar no more than 90 days following the end of the period for which the individual claims the compensation; and

(e) the event giving rise to the claim arose after January 1, 2014.

(2)  The Authority may request that the individual provide the Authority with the documents and other information that the Authority requires to assist the Registrar in deciding whether to approve a claim for compensation.

Approval of claims

64.3  (1)  If the Registrar receives a claim from an individual for the payment of compensation and is of the opinion that the following criteria are satisfied, the Registrar may approve the claim and direct the Authority to pay a specified amount to the claimant:

1. The claim satisfies the conditions described in subsection 64.2 (1).

2. Payment to the claimant would assist the claimant to find, move to or pay for alternate accommodation or to access alternate care providers.

3. Payment from the Fund to the claimant would be consistent with the fundamental principle described in section 1 of the Act.

4. The Fund has the capacity to make the payment.

(2)  The total amount paid to a claimant shall not exceed $10,000.

(3)  Subject to subsection (4), the Authority shall comply with a direction by the Registrar made under subsection (1).

(4)  The Registrar may make approval of a claim conditional on the claimant first,

(a) satisfying the Registrar that the claimant has exhausted any or all legal remedies available to him or her to recover the costs claimed; or

(b) entering into a written agreement with the Authority subrogating the Fund to any and all rights and remedies to which the claimant is entitled in respect of the claim.

(5)  The Authority shall promptly inform a claimant of any decision or direction by the Registrar made under this section with respect to the claim.

14.  The Regulation is amended by adding the following section:

Approval of emergency payments

64.4  (1)  The Registrar may approve a resident or former resident of a retirement home to receive the benefit of payment from the Fund and may direct the Authority to pay specified amounts to the individual or to other specified persons for the benefit of the individual if the Registrar is of the opinion that,

(a) as a direct result of emergency circumstances arising from loss or damage to the home or from abuse or neglect resulting in a serious and imminent risk of harm to the individual, the operator is unable to safely provide the normal accommodation or care in the home to the individual;

(b) payment would enable or assist the individual to find, move to or pay for reasonable alternate accommodation or to access alternate care providers;

(c) payment from the Fund in the circumstances would be consistent with the fundamental principle described in section 1 of the Act; and

(d) the Fund has the capacity to make the payment.

(2)  The total amount in respect of an individual that is paid to or for the benefit of the individual shall not exceed $2,000.

(3)  Subject to subsection (4), the Authority shall comply with a direction by the Registrar made under subsection (1).

(4)  The Registrar may make approval conditional on the individual first entering into a written agreement with the Authority subrogating the Fund to any and all rights and remedies to which the individual is entitled in respect of the costs to which the payments relate.

(5)  The Authority shall promptly inform all individuals who the Registrar approves to receive the benefit of a payment from the Fund of any decision or direction by the Registrar made under this section with respect to the payment.

15.  (1)  The Regulation is amended by adding the following sections:

Transition

Risk Officer and Complaints Review Officer

64.5  The board is not required to appoint a Risk Officer under subsection 24 (1) of the Act or a Complaints Review Officer under subsection 25 (1) of the Act before January 1, 2014.

Reduction in care services

64.6  A licensee of a retirement home is not required to comply with section 44 of the Act and section 6 of this Regulation if the licensee reduces the care services that the licensee makes available in the home before July 1, 2012.

Ceasing to operate a retirement home

64.7  A licensee of a retirement home is not required to comply with section 49 of the Act and section 7 of this Regulation if the licensee ceases to operate it as a retirement home before July 1, 2013.

Agreement before resident commences residency

64.8  A licensee of a retirement home is not required to comply with section 53 of the Act in respect of a resident who commences residency in the home before July 1, 2012.

Information for residents

64.9  (1)  A licensee of a retirement home is not required to comply with section 54 of the Act in respect of a resident who commences residency in the home before July 1, 2012.

(2)  Despite subsection (1), after July 1, 2012, a licensee shall provide the package of information mentioned in clause 54 (1) (a) of the Act to a resident who commenced residency before July 1, 2012 if the resident or a substitute decision-maker of the resident so requests.

(3)  Despite subsection 54 (2) of the Act and section 10 of this Regulation, before July 1, 2013, a licensee is not required to include, in the package of information mentioned in clause 54 (1) (a), the matters mentioned in clauses 54 (2) (q), (r) and (u) of the Act and clauses 10 (a), (b), (c), (e), (f), (i) and (j) of this Regulation.

Public information

64.10  A licensee is not required to comply with paragraphs 1, 2, and 3 of subsection 55 (2) of the Act before July 1, 2012.

Co-operation with Residents’ Council assistant

64.11  A licensee is not required to co-operate with a Residents’ Council assistant as set out in clause 58 (1) (a) of the Act before January 1, 2013.

Care and safety standards

64.12  (1)  For the purposes of subsection 60 (5) of the Act, a licensee to whom a standard mentioned in subsection 60 (1) or (3) of the Act or a requirement mentioned in subsection 60 (4) of the Act applies shall comply with the standard or requirement, as the case may be, by the day on which the standard or requirement, as the case may be, first applies to the licensee.

(2)  If, before January 1, 2014, a licensee of a retirement home is not required to have developed a plan of care for a resident of the home and the licensee or staff of the home provide assistance with bathing to the resident, the licensee is not required to comply with clause 35 (c) but the licensee shall ensure that the resident is bathed with reasonable frequency.

(3)  For the purposes of the emergency plan required by paragraph 1 of subsection 60 (4) of the Act, a licensee is not required, before January 1, 2013, to comply with sections 24 to 26 of this Regulation, except for clause 24 (5) (b), if the licensee consults as soon as possible with the relevant community agencies, partner facilities and resources that will be involved in responding to an emergency with respect to the development of the emergency plan and documents the consultations.

(4)  A licensee is not required to comply with paragraph 2 of subsection 60 (4) of the Act and section 27 of this Regulation before January 1, 2013.

Plan of care

64.13  (1)  For the purposes of section 62 of the Act, if a resident commenced residency in a retirement home before January 1, 2013 and the licensee of the home has reason to believe that the resident’s care needs may include the use of a personal assistance services device, section 62 of the Act and sections 44, 46, 47 and 48 of this Regulation apply in respect of the resident as if the resident commences residency in the home on July 1, 2013.

(2)  For the purposes of section 62 of the Act, if a resident commenced residency in a retirement home before January 1, 2013 and the licensee of the home does not have reason to believe that the resident’s care needs may include the use of a personal assistance services device, section 62 of the Act and sections 44, 46, 47 and 48 of this Regulation apply in respect of the resident as if the resident commences residency in the home on January 1, 2014.

(3)  Despite subsections (1) and (2), if a resident commenced residency in a retirement home before January 1, 2013, the licensee of the home is exempt from the requirement in section 43 to ensure that an initial assessment of the resident is conducted and from the requirement in subsection 47 (1) to develop an initial plan of care for the resident.

Staff training in fire prevention and safety

64.14  A licensee is not required to comply with subsections 65 (2) and (3) of the Act, except for clauses 65 (2) (a), (b), (c), (d), (f) and (i) of the Act, before January 1, 2013.

Use of personal assistance services devices

64.15  Before January 1, 2013, a licensee of a retirement home is not required to comply with clause 69 (2) (e) of the Act as a condition of permitting the use of a personal assistance services device for a resident of the home if the licensee has not developed a plan of care for the resident.

Records

64.16  (1)  A licensee is not required to keep the records mentioned in clauses 55 (2) (a), (b), (c), (d) and (f) and (5) (e) and (f) before January 1, 2013.

(2)  A licensee is not required to keep the records mentioned in clauses 55 (2) (g) and (5) (d) before July 1, 2013.

(3)  A licensee is not required to keep the records mentioned in clauses 55 (5) (a) and (b) before January 1, 2014.

(2)  Sections 64.6 and 64.10 of the Regulation, as made by subsection (1), are revoked.

(3)  Section 64.11, subsections 64.12 (3) and (4), sections 64.14 and 64.15 and subsection 64.16 (1) of the Regulation, as made by subsection (1), are revoked.

(4)  Section 64.7 and subsections 64.9 (3) and 64.16 (2) of the Regulation, as made by subsection (1), are revoked.

(5)  Section 64.5 and subsections 64.12 (2) and 64.16 (3) of the Regulation, as made by subsection (1), are revoked.

16.  Subsection 66 (2) of the Regulation is revoked and the following substituted:

(2)  The following rules apply:

1. Sections 1 to 4, 5, 6, 7, 58, 61, 62, 64 and 65 come into force on April 15, 2012.

2. Sections 8, 9, 10, subsection 11 (1), section 12, subsection 14 (1), sections 15, 24 to 27, 51 to 54, subsections 55 (1), (2) and (5) and sections 56, 59 and 63 come into force on July 1, 2012.

3. Sections 16 to 23, 28 to 47, subsection 48 (2), sections 49 and 50 and subsections 55 (3) and (4) come into force on January 1, 2013.

4. Subsections 14 (2), (3), (4) and (5) and section 57 come into force on July 1, 2013.

5. Section 13, subsection 48 (1) and section 60 come into force on January 1, 2014.

Commencement

17.  (1)  Subject to subsections (2) to (7), this Regulation comes into force the day it is filed.

(2)  Sections 1 and 2, subsections 3 (1) and 4 (3), section 8 and subsections 12 (1) and 15 (1) come into force on the later of April 15, 2012 and the day this Regulation is filed.

(3)  Subsections 3 (2), 4 (1) and (4), sections 10 and 13 and subsection 15 (2) come into force on the later of July 1, 2012 and the day this Regulation is filed.

(4)  Section 11 comes into force on the later of the day sections 33, 44, 49, 60, 61 and 67 of the Act come into force and the day this Regulation is filed.

(5)  Subsection 4 (2), sections 5, 6 and 7 and subsections 12 (2) and 15 (3) come into force on the later of January 1, 2013 and the day this Regulation is filed.

(6)  Subsection 15 (4) comes into force on the later of July 1, 2013 and the day this Regulation is filed.

(7)  Sections 9 and 14 and subsection 15 (5) come into force on the later of January 1, 2014 and the day this Regulation is filed.

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