No one has been fined in Ontario so far under a new law that can require patients to pay a daily $400 penalty if they refuse to move from a hospital to a long-term care home not of their choosing, the province and its hospitals say.
But families and advocates argue the threat posed by the law is pushing patients into nursing homes they wouldn't otherwise choose.
The law, which went into effect in September, can move discharged patients into nursing homes they didn't consent to. Patients in southern Ontario can be moved to homes up to 70 kilometres away, while those in northern Ontario can be moved up to 150 kilometres away.
The legislation is aimed at so-called "alternative level of care" patients who no longer need to be in hospital and are awaiting spots in long-term care. The government has said the law can free up much-needed hospital beds.
Hospitals say they've been reticent to employ the law, but placement co-ordinators incorporate discussion of it in their chats with patients.
"The hospital community is very uncomfortable with this kind of adversarial position," said Anthony Dale, CEO of the Ontario Hospital Association.
Hospital co-ordinators bring up the law to help patients understand "wider circumstances" when the time comes for them to consider moving to long-term care, Dale said.
"The conversations with patients and families help them understand the kind of options that are open to them and to help them understand how they can help another patient who also needs access to hospital-based care," he said.
There were 2,135 alternate-level-of-care patients in hospitals awaiting spots in long-term care in September, the association said. There are now 1,830 such patients in hospital, government data shows.
The province says 7,600 alternate-level-of-care patients have moved into nursing homes since the law took effect.
Sixty-six patients were sent to live in nursing homes they didn't choose, the long-term care minister said in a letter earlier this month sent in response to a question from the NDP.
The law was also enacted when the government allowed nursing homes to open up empty beds reserved to isolate those with COVID-19, making its effect hard to gauge. That move freed up some 2,100 beds, the government said, more than the 1,300 it expected would open up.
Some families say the law has brought on a great deal of stress.
Sheri Levergood's 82-year-old mother, who lives with vascular dementia, was hospitalized after a series of falls at her retirement home last November and became an alternate-level-of-care patient after a month-long hospital stay.
Janet Levergood was cleared to leave hospital as long as she had enough care, but the level of care required was significant because of her needs and propensity to fall.
Her retirement home wouldn't take her back and moving in with her daughter wasn't possible because there wouldn't be enough help from personal support workers, her family said.
The hospital wanted her to go into a long-term care home, but Levergood's top choices had no rooms available. The hospital then picked two spots in "transitional care units," her daughter said.
Levergood didn't like those options. That's when the hospital's placement co-ordinator told her about the $400 fine.
"I felt like I had no options," Sheri Levergood said. "I actually sunk into really bad depression and I was having panic attacks."
Then, like a miracle, a spot opened up in one of Janet Levergood's preferred nursing homes.
"I felt very blessed that the doors opened for us," Sheri Levergood said. "If a spot didn't open up, we would have just had to go to one of those homes that we were dead set against."
Long-Term Care Minister Paul Calandra said he recognizes the stress the legislation has created for families.
"I get it, it's a very stressful time," he said at his office at the legislature.
"Once you're in the system, it's a good system, but getting into the different systems is like a royal pain."
Calandra positioned the legislation as a success, pointing to the 4,800 patients who have now added more nursing homes to their list of preferred choices since the law came into effect.
"We're seeing movement from hospital into long-term care, but more importantly, we're seeing people adding choices to the list of homes that they're willing to go to," he said.
Hospitals were allowed to start issuing the $400-a-day fines in November, but Calandra said he's not surprised none have been laid so far to his knowledge.
"I never thought that there'd be massive amounts of fines going on," he said. "But it has to be there as a part of the system."
A smaller hospital network in southern Ontario said it has not used the legislation because it just doesn't apply to their current situation.
"We don't have available long-term care beds that are sitting there vacant," said Andrew Williams, the CEO of Huron Perth Healthcare Alliance.
The number of alternate-level-of-care patients who need to be discharged remains a problem, he said, adding he would employ the law if he could.
"As much as people are saying it's unfair to expect people to move through the system, it's equally unfair to have people wait because of that," Williams said.
But advocates say the threat of a fine means that patients could be consenting to moves they don't really agree with.
"People are aware that this is hanging over their head," said Jane Meadus, a lawyer with the Advocacy Centre for the Elderly.
"They generally will choose homes that they don't want ... because they believe they don't have any other choice."
This report by The Canadian Press was first published April 24, 2023.
Liam Casey, The Canadian Press
