This bulletin summarizes amendments (the “Proposed Regulatory Amendments”) to regulations proposed to be made under or relating to the Ambulance Act and the Medical Radiation and Imaging Technology Act, 2017 (the “MRITA”). It also summarizes recent amendments to Ontario Regulation 79/10 (the "LTCHA Regulation") under the Long-Term Care Homes Act, 2007 (the "LTCHA").
The Proposed Regulatory Amendments include more flexible models of care for ambulance services and address transitional matters necessary for long-pending medical radiation and imaging legislation to come into force. The amendments to the LTCHA Regulation provide a framework for the establishment of long-term care spaces for individuals requiring higher levels of care than are available in the regular long-term care stream.
Regulatory amendments have been proposed frequently in the past few months, as demonstrated by the Proposed Regulatory Amendments, the amendment to the LTCHA Regulations and amendments proposed to regulations under the Nursing Act, 1991 that are discussed below under "Looking Ahead".
Notably, the regulations pick up on two other government initiatives. In particular:
- The Proposed Regulatory Amendments relating to the Ambulance Act, and the amendments to the LTCHA Regulation, advance recommendations from two reports released in 2019 by the Premier's Council on Improving Healthcare and Ending Hallway Medicine (the "Council"). The Council's second report included 10 recommendations to improve health care (the "Recommendations").
- The Proposed Regulatory Amendments may shed some light on the status of the Strengthening Quality and Accountability for Patients Act, 2017 ("Bill 160"). While Bill 160 received royal assent in 2017 under the previous provincial government, many sections (including those sections pertaining to the three new acts established by Bill 160) have not been proclaimed into force. More specifically, the Proposed Regulatory Amendments indicate that the MRITA, which was introduced by Bill 160 but is not yet in force, will be proclaimed. In addition, the Proposed Regulatory Amendments relating to the Ambulance Act appear to be duplicative of some of the amendments to that Act introduced by Bill 160.
New Models of Care Under the Ambulance Act
The Proposed Regulatory Amendment
On September 5, 2019, the Ministry of Health (the "Ministry") proposed amendments to Ontario Regulation 257/00 (the "Ambulance Regulation") under the Ambulance Act that would create authority for implementing new models of care, including:
- transporting patients to places other than hospital emergency departments where they can receive appropriate treatment;
- the ability of paramedics to treat certain patients on-scene and refer them to another health care provider;
- the ability of paramedics to treat and release certain patients on-scene; and
- the ability of paramedics to refer select low acuity patients who have called 911 to appropriate care in the community rather than bringing them to a hospital emergency department.
To support the new health care models at items 1 and 4 above, the Ministry also proposed amendments to Regulation 552 under the Health Insurance Act that will establish charges for transportation to non-hospital destinations that align with existing ambulance service charges. Currently, Regulation 552 does not provide Ontario Health Insurance Plan coverage for transportation to a non-hospital destination.
In addition to standards for the new models of care, the Proposed Regulatory Amendments would enable the Ministry to establish standards for health care professionals, such as nurses working at ambulance communication centres, to provide clinical advice during 911 calls, and allow communication services departments to provide clinical assessments to 911 callers.
The proposed alternative (non-hospital) care options for some 911 patients resemble amendments to the Ambulance Act introduced by Bill 160. The amendments made by Bill 160 (which have no proclamation date as of the date of this Bulletin) would give the Minister of Health wide scope to issue operational and/or policy directives to operators of land ambulance services where it is in the public interest to do so. Such directives could enable paramedics to:
- deliver patients to a facility, other than a hospital, that would better meet the patients' needs; and
- provide alternative care on-site to patients.
The amendments in Bill 160 would, for example, allow for a patients with lower acuity conditions to be taken to a community-care clinic, and patients in emotional or mental distress to be taken to a mental-health facility, avoiding unnecessary visits to the emergency department. The current government committed to exploring new models of care and delivery for emergency health services to improve care for patients and reduce duplication in the 2019 Ontario Budget, but did not mention Bill 160 specifically. The Proposed Regulatory Amendments that relate to the delivery of care by paramedics appear to be somewhat redundant if the amendments from Bill 160 will also come into force.
The Council's Recommendations
Many of the ideas that run through the Recommendations, particularly with respect to capacity in the health care system, are consistent with the proposed amendments related to the Ambulance Regulation as well as the amendments to the Ambulance Act in Bill 160. Namely, Recommendations 9 and 10 are aimed at maximizing the current capacity of the province's health care system in order to:
- relieve short-term capacity pressures; and
- achieve the correct balance of resources within the health care system.
The Council set action items to give effect to the Recommendations. One such item is to maximize existing resources to increase capacity by reviewing the roles and responsibilities of health care professionals to confirm that they are optimizing their permitted scope of practice. The four new models of care contemplated by the Proposed Regulatory Amendments relating to the Ambulance Regulation direct patients to resources and health care professionals other than emergency departments and emergency room physicians where appropriate.
The legislative amendments pending proclamation under Bill 160 pertaining to the Ambulance Act were the subject of some concern, in particular that paramedics could face greater liability as a result of pressure to treat patients without taking them to a hospital or to transport patients to inappropriate and unsafe settings. Similar concerns may be raised by the Proposed Regulatory Amendments now tabled. Comments closed on the amendments to the Ambulance Regulation on October 6, 2019.
Preparing for the Medical Radiation and Imaging Technology Act, 2017
Schedule 6 of Bill 160 enacted the MRITA, which will come into force with the repeal of the current Medical Radiation Technology Act, 1991. While no proclamation date has been set, on September 10, 2019 the Ministry introduced the Proposed Regulatory Amendments, which affect related regulations under related legislation, to support the MRITA.
The MRITA will expand the scope of practice of medical radiation and imaging technology by adding the use of soundwaves (sonography) for the purposes of diagnostic procedures. It will also change the name of the applicable regulated profession from the College of Medical Radiation Technologists of Ontario to the College of Medical Radiation and Imaging Technologists of Ontario (CMRTO). The Proposed Regulatory Amendments include amendments to Ontario Regulation 107/96 (Controlled Acts) made under the Regulated Health Professions Act, 1991 and Regulation 543 (X-Ray Safety Code) made under the Healing Arts Radiation Protection Act, both to update language (e.g. the college name and profession title) to be consistent with the MRITA.
Despite only a handful of the significant changes in Bill 160 being proclaimed over the past year and a half, the Proposed Regulatory Amendments relating to the MRITA indicate that the amendments in Bill 160 remain, at least in part, on the agenda, and the MRITA is likely on its way.
Note: In anticipation of proclamation of the MRITA, CMRTO has updated its website to inform the public that it now regulates five specialties of the profession of medical radiation and imaging technology, including diagnostic medical sonographers. A short video has also been posted by CMRTO to explain the changes.
Long-Term Care Homes Act, 2017
On August 29, 2019, amendments were made to the LTCHA Regulation. The amendments allow the Director under the LTCHA to designate high acuity priority access beds ("HPABs") in long-term care homes. HPABs will have separate waiting lists and are for people who can benefit from the provision of ongoing nursing or other personal care and technology-based care.
The amendments are consistent with the Council's purpose of relieving pressure on hospitals. In its first report, the Council discussed the number of patients in Ontario who require an alternative level of care ("ALC"), meaning that they are occupying a bed in a hospital despite not requiring that intensity of resources or services. The Council found that the largest proportion of ALC days are attributable to patients waiting to be discharged from a hospital to a long-term care home.
The Council's Recommendations
Recommendation 5 from the Council's second report includes updating the rules around access to long-term care beds. Recommendation 5 provides that placement should be reviewed to ensure applicants with medium to high acuity care needs are prioritized into placement for long-term care and ensure there are other options available to more appropriately care for people with low acuity needs. The amendments to the LTCHA Regulation include criteria for placement on a waiting list for admission to HPABs. Among those criteria is the requirement that the person is at significant risk of avoidable admission to a hospital, or occupies a bed in a hospital and requires ALC. There have been calls for these criteria to be more clearly defined. The long-term care industry has also pointed out the pressure HPAB designation may put on the waiting lists for other types of beds. Wait times to access long-term care is one of the measures that the Council proposed, in addition to ALCs, to monitor progress on the Recommendations.
Some amendments to the LTCHA made by Bill 160 are in force, including but not limited to:
- a more stringent duty on directors and officers to ensure that the long-term care home complies with all requirements of the LTCHA; and
- significantly increased penalties for offences.
We also note that over the summer, two new sections of Bill 160, which make minor amendments to the LTCHA, were proclaimed into force. Such proclamation and the Proposed Regulatory Amendments raise the question of whether some of the more significant amendments to the LTCHA, including administrative monetary penalties, re-inspection fees and licence suspensions, could be proclaimed. Prior to the most recent provincial election in 2018, amendments to accompany the changes in Bill 160 were introduced to the LTCHA Regulation, specifically with respect to administrative monetary penalties. The amendments to the LTCHA Regulation will not come into force until the amendments to the LTCHA in Bill 160 come into effect.
The Proposed Regulatory Amendments and amendments to the LTCHA Regulation suggest that (a) the Council's recommendations are being reflected in health care legislation and (b) the provisions of Bill 160 that have not yet been proclaimed into force, may not be entirely off of the agenda.
We expect that the Ontario government will continue to implement the Recommendations. For example, three of the ten Recommendations were made with respect to integration, and over the past several months, the province has taken significant steps towards the new Ontario Health Team model. Additionally, this week the government announced two proposed amendments to regulations under the Nursing Act, 1991, put forward by the College of Nurses of Ontario, which would expand the authorized acts of nurses in Ontario. As stated above, one of the action items proffered by the Council to advance the Recommendations is for the roles and responsibilities of health care providers to be reviewed to ensure that they are maximizing their permitted scope of practice.
Bill 160 created three new pieces of legislation, amended seven acts and repealed five acts. As noted, a significant amount of the changes are not yet in force. There is no legal requirement that all sections of an act be proclaimed at the same time, or at all. An act or provision that remains unproclaimed for more than nine years will be repealed unless the Legislative Assembly adopts a resolution providing otherwise. If not proclaimed in force by 2027, the provisions of Bill 160 that remain unproclaimed will be repealed. Nonetheless, given the recent developments, we continue to watch for changes with respect to the status of Bill 160.
 The Council's reports are summarized in a series of Fasken bulletins. See: Hallway Health Care: A Symptom of Broader Challenges Facing Ontario's Healthcare System, Overview of the Second Report of the Premier's Council on Improving Healthcare and Ending Hallway Medicine: Part I, Overview of the Second Report of the Premier's Council on Improving Healthcare and Ending Hallway Medicine: Part II, Overview of the Second Report of the Premier's Council on Improving Healthcare and Ending Hallway Medicine: Part III.
 These recommendations are summarized in two of the above noted bulletins, namely: Overview of the Second Report of the Premier's Council on Improving Healthcare and Ending Hallway Medicine: Part II, Overview of the Second Report of the Premier's Council on Improving Healthcare and Ending Hallway Medicine: Part III.
 The substantial provisions of Bill 160 were summarized by Fasken in our bulletin on October 10, 2017, Ontario Introduces the Strengthening Quality and Accountability for Patients Act, 2017.
 See Fasken's bulletin, Bill 74: Integration and Accountability in Ontario's Health System under the Connecting Care Act, 2019, for additional information regarding integrations under Ontario's new Connecting Care Act, 2019.
 See: Initiation of Psychotherapy by Registered Nurses and Registered Practical Nurses ; Registered Nurse (RN) Prescribing: Proposed regulatory amendments to Ontario Regulation 275/94 (General), Part III (Controlled Acts) and Part V (Delegation) under the Nursing Act, 1991