Health

Nursing homes must staff RNs 24/7

Toronto health lawyer Lonny Rosen says a recent decision by the Health Services Appeal and Review Board underscores the necessity for all nursing homes – even the small, cash-strapped ones – to adhere to the requirement in Ontario’s Long-Term Care Homes Act to have at least one registered nurse, who is an employee, present in the home at all times.


“Despite financial hardship, even small nursing homes must meet their obligations under the legislation, including the requirement to have a registered nurse who is both an employee of the home (or who works regularly in the home pursuant to a contract) and a member of the regular nursing staff on duty and present in the home at all times,” he tells AdvocateDaily.com.

Rosen, partner at Rosen Sunshine LLP, says this requirement is affirmed by the outcome of an appeal by Morriston Park Nursing Home of a decision by the Director of the Performance Improvement and Compliance Branch at the Ministry of Health and Long-Term Care last April. The Ministry confirmed a compliance order made by an inspector based on a finding that the nursing home was not in compliance with the requirement in section 8(3) of the Long-Term Care Homes Act to have a registered nurse, who is both an employee of the home and a member of the regular nursing staff, on duty and present in the facility at all times.

Morriston Park is a 28-bed long-term care facility in Puslinch, Ont., licensed under the act, says the decision.

The Health Services Appeal and Review Board, an independent tribunal that conducts appeals and reviews under health-care statutes, denied the appeal from the nursing home in its decision (2014 CanLII 62311).

The matter goes back to Nov. 5, 2013 when a resident of Morriston Park fell and was assessed by a registered practical nurse (RPN). The resident was transferred to hospital for treatment and a critical incident report resulted in an inspection of the nursing home by the ministry, which took place on Jan. 7, says the appeal decision.

After interviewing witnesses, including Morriston Park staff, and reviewing staff schedules and operating policies, the ministry inspector concluded that the nursing home had failed to comply with the requirement under s. 8(3) of the act to have a registered nursing (RN) present in the home at all times (known as the 24/7 RN coverage requirement), says the appeal.

The inspector issued an order in March, requiring the nursing home to comply with the RN coverage on or before the end of the month. The inspector also noted that the home had been the subject of two previous compliance orders arising out of inspections in 2011 and 2012 identifying failure to comply with the same RN requirement.

The nursing home requested that the ministry rescind the order, acknowledging its failure to comply. The home argued that there was a shortage of available registered nurses, and that this constituted an emergency that exempted the home from the act’s requirements. However, the home did not comply with its own policy requirement to ensure adequate nursing staffing by contacting an agency to provide staffing, says the appeal decision.

In its decision, the board found these circumstances did not meet the definition of an emergency under the act.

While the director at the ministry branch that oversees such matters issued an order requiring the home to comply with the requirement immediately, the board varied the order, giving the home an additional 90 days within which to comply.

The home also argued that the ministry had previously identified non-compliance in this regard, and was therefore estopped from taking action at this time. In fact, the ministry had taken action in the past, but had not issued a binding compliance order. The estoppel argument failed, says Rosen.

At the end of the hearing, the appeal board asked the parties to make written submissions about whether it should extend the deadline for compliance in the event it confirmed the director’s decision. The parties agreed that the board may extend the deadline.

The board confirms the decision of the director, subject to a variation to extend the deadline for compliance to 90 days from the release of this decision.

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