ARCH Submission to the Ministry of Health on Proposed Regulations under the Connecting People to Home and Community Care Act

Submissions of ARCH Disability Law Centre to the Standing Committee on the Legislative Assembly regarding Bill 37, An Act to enact the Fixing Long-Term Care Act, 2021 and amend or repeal various acts

November 25, 2021

A. Introduction

ARCH Disability Law Centre welcomes the opportunity to provide written submissions on Bill 37, An Act to enact the Fixing Long-Term Care Act, 2021 and amend or repeal various acts to the Standing Committee of the Legislative Assembly.

The fundamental principle of Bill 37 is that “a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met”.

However, this essential goal has not been met by Bill 37. The Bill fails to modernize a long-term care system that is woefully out-dated, underfunded, understaffed and that has desperately failed Ontario’s seniors. Bill 37 is primarily a restatement of the current Long-Term Care Act 2007 and does not deliver a transformed and improved sector, as recommended by the Marrocco Commission [1].

The concerns raised and recommendations offered herein flow from a fundamental concern that Bill 37 does not contemplate or address the particular, complex, and specific needs of seniors and persons with disabilities.

Similar to other pieces of legislation, Bill 37 has been quickly pushed through provincial parliament[2]. Bill 37 was introduced on October 28, 2021. The legislature rose for a week, and when it returned on November 17, Bill 37 received second reading and was referred to this Standing Committee on November 18, 2021. Oral submissions were made from November 22 – 25 and written submissions are due November 25, 2021. There is little time afforded to interested advocacy groups to make their concerns about Bill 37 known. There is only a slight nod to public consultation, sending the message that this government is uninterested in public consideration and discourse on important issues affecting persons with disabilities and seniors. Indeed, given this short timeframe, ARCH was unable to meaningfully consult with communities of persons with disabilities and those who support them. Our submissions rely on the work we have done with marginalized communities but has not been informed by direct consultation with those impacted by this Bill.

Finally, the title of the proposed legislation is misleading. Bill 37 doesn’t “fix” the documented problems in the long-term care sector. A careful analysis of Bill 37 demonstrates that language is added to make it appear that the government is doing something, when it is actually maintaining the status quo. Younger adults with disabilities and seniors deserve so much more than a restatement of the current Act, particularly against the background of COVID-19 and substantial criticism that the current legislation fails society’s most vulnerable.

Recommendation:

1) This government should withdraw Bill 37, conduct meaningful consultations with seniors, persons with disabilities and/or their families, carers and rights advocacy groups so that Bill 37 addresses important considerations based on lived experience.

B. About ARCH

ARCH is an Ontario-based specialty legal clinic that is dedicated to defending and advancing the equality rights of persons with disabilities. ARCH is governed by a volunteer board of directors, a majority of whom are people with disabilities. ARCH provides a telephone summary advice and referral service and represents individuals as well as provincial and national disability organizations in test case litigation at all levels of tribunals and courts. We provide education to persons with disabilities on disability rights and to the legal profession about disability law. We make submissions on matters of policy and law reform. ARCH maintains a website at: www.archdisabilitylaw.ca

The comments and recommendations herein are informed by ARCH’s legal work which includes the direct representation of persons with disabilities, and working with community organizations and disability groups, on issues related to long-term care facilities.

C. Issues and Recommendations

I. Younger Persons with Disabilities Should Not Be Housed in Long-Term Care Facilities

Bill 37 ignores the unfortunate reality that many persons with disabilities who are under age 65 are forced to live in long-term care facilities because of the paucity of options available to them. Recent statistics show that 7% of all residents in long-term care homes are persons with disabilities aged 19 – 65. [3]

ARCH supports the rights of persons with disabilities to live with dignity in their chosen community, to fully participate in all aspects of their life, and control and make decisions and choices about issues that affect them. Article 19 of the Convention on the Rights of Persons with Disabilities confirms the essential right to live independently and be included in the community [4]. However, these important values are undermined if persons with disabilities are denied choices about where, and with whom, they live.

Young adults with disabilities do not belong in facilities where it is difficult to form friendships or relationships with persons who are at the end stages of life, or with persons who have different life experiences and interests than they do. Loneliness and social isolation can result from the lack of peers of a similar age. Programming frequently does not meet the needs of younger adults with disabilities and it is next to impossible to individually tailor programs or services to engage and keep younger people active. Staff may not be trained to provide appropriate services to a younger cohort. There is an emotional toll and significant grief to contend with when people around you are dying. Younger people with disabilities may age more quickly when surrounded by aging and dying long-term care residents.

The absence of effective community supports, which would allow younger adults with disabilities to live in and age in their own homes, is a fundamental barrier to independent living. The lack of supported, affordable, and accessible housing is another barrier younger adults with disabilities face. However, reliance on the long-term care system to house persons with very different needs will continue if the government does not make it a priority to provide adequate community supports or appropriate housing. The government must create options that give younger persons with disabilities choice and control over where they live, and with whom.

Recommendations:

2) The government must adopt the principle that a person with a disability cannot be deprived of choice and control regarding where they live, with whom they live, their lifestyle and daily activities.

3) The government must invest in community supports and services for young adults with disabilities, so they can live and age in a setting or community of their choice.

4) The government must invest in affordable, accessible and appropriate housing options for young persons with disabilities to enhance choice and decision-making options.

II. Remove “Mission-driven” from the Legislation

Bill 37 erodes government commitment to non-profit organizations. It opens the door wider to for-profit operators to enter, as long as they are “mission-driven”.

Newspaper coverage and the Long-Term Care COVID-19 Commission Report[5] have shown us that the death toll of seniors, and persons with disabilities, in long-term care homes was primarily in for-profit settings. However, instead of pushing for more public sector control over long-term care, this government has affirmed its commitment to private sector operations and management as long as they are “mission driven”. Mission-driven is not defined in the Bill.

It has been well documented that for-profit housing represents a conflict of interest in long-term care settings.

After almost 4,000 deaths in long-term care facilities, this government has not heeded the urgent signal that drastic change is necessary to protect long-term care home residents from degrading and hostile living settings, where profit can override considerations of quality of life and quality services.

The current Act commits to the delivery of long-term care by non-profit organizations. Given the horrific backdrop to the proposed legislation, we expect nothing less than a renewed commitment to non-profit management of long-term care.

Recommendation:

5) The government remove any reference to mission-driven organizations in the proposed legislation.

III. The Bill of Rights and Enforcement

Many of the current rights under the Bill of Rights have been simply moved around under the proposed Act. Additional rights have been added, and while we do not want to detract from their importance, the fact is that these additional rights are already mandated by the Ontario Human Rights Code. However, ARCH’s primary concern is how these rights can be enforced.

ARCH has not been able to find any decisions where the Bill of Rights has been the subject of a breach of contract action in courts. Enforcing rights through the courts is time consuming and expensive, with many procedural rules that must be followed.

The Health Service Appeal and Review Board (HSARB) is established to decide cases about quantity of service complaints. ARCH believes that the jurisdiction of HSARB could easily be expanded to include quality of service complaints and breaches of the Bill of Rights. Administrative tribunals have flexible processes, with fewer evidentiary rules, and can more quickly resolve grievances so they do not fester. HSARB has a pre-hearing or mediation process that happens quickly, and attempts to settle disputes before a hearing begins.

If the government does not want to rely on HSARB to resolved breaches of the Bill of Rights or quality of services complaints, then ARCH recommends that a different, but similar, independent administrative body be established to determine grievances in an expeditious and non-adversarial manner. Residents and staff must continue to work together and collaborative approaches to dispute resolution help to maintain a positive working relationship without fear of reprisal.

Recommendations:

6) Expand the jurisdiction of the Health Services Appeal and Review Board to hear appeals on the quality of services provided to resident by living in long-term care, in accordance with the Bill of Rights.

7) Alternatively, the government must establish an independent tribunal responsible for resolving quality of service complaints and reaches of the Bill of Rights.

IV. Enforcement By Annual Surprise Inspections

Bill 37 does not reintroduce annual surprise inspections. ARCH believes that the only way to maintain quality standards and quality services in long-term care facilities is to have annual surprise inspections. These would add to quality control measures. They would encourage long-term care facilities to be proactive in the services it provides.

Recommendation:

8) Bill 37 be amended to require annual surprise inspections of all long-term care facilities.

V. Service Targets

Bill 37 introduces an improvement for residents by recommending that an average of 4 hours of direct service be provided to them. However, these targets are a restatement of promises made in the 2020 budget. The end date for implementation of these services is 2025. Back loading the introduction of direct care to residents by 2025 is insupportable. Residents need direct services now, not in four years when many current residents will not benefit from these dedicated service targets.

Four hours of direct care per resident is based on an average across the long-term sector. ARCH strongly recommends that the four hours of direct service average be calculated on a per resident per facility basis. This would significantly increase the amount of services a resident can expect, that best meets their changing needs as they age.

In addition, facilities must be required to publicly report that they are meeting the standard of four hours care per resident, so they can effectively be monitored in reaching this goal. Explanations regarding why service targets are not being met must also be publicly reported.

Moreover, no consequences for failing to meet the four hour standard of care are spelled out in the legislation. Penalties must be imposed on facilities that do not meet this standard of care, otherwise the provision can be virtually meaningless.

Recommendations:

9) The target of four hours of direct care for residents must be implemented immediately.

10) The average of four hours per resident should be calculated on a facility by facility basis.

11) Facilities are required to publicly report that they are meeting the four hours of direct services per resident. Explanations must be provided if the four hour standard is not being met.

12) Meaningful penalties must be imposed for failure to meet the four hour direct service average.

VI. Address the Staffing Crisis

ARCH relies on and adopts the critical submissions and recommendations of the United Steelworkers[6] on this important topic.

D. Conclusion

Throughout these submissions, ARCH has highlighted some of the underlying issues in the Long-Term Care sector that must be addressed by Bill 37. ARCH believes that if the recommendations included in these submissions, as well as the thoughtful submissions and recommendations from other rights’ based advocacy groups, are implemented, an improved framework for persons with disabilities and seniors will result.

Thank you for the opportunity to provide our submissions on this important Bill. If you have any questions or if ARCH can be of further assistance, please do not hesitate to contact us.

Appendix A

Recommendations

1) This government should withdraw Bill 37, conduct meaningful consultations with seniors, persons with disabilities and/or their families, carers and rights advocacy groups so that Bill 37 addresses important considerations based on lived experience.

2) The government must adopt the principle that a person with a disability cannot be deprived of choice and control regarding where they live, with whom they live, their lifestyle and daily activities.

3) The government must invest in community supports and services for young adults with disabilities, so they can live and age in a setting or community of their choice.

4) The government must invest in affordable, accessible and appropriate housing options for young persons with disabilities to enhance choice and decision-making options.

5) The government remove any reference to mission-driven organizations in the proposed legislation.

6) Expand the jurisdiction of the Health Services Appeal and Review Board to hear appeals on the quality of services provided to resident by living in long-term care, in accordance with the Bill of Rights.

7) Alternatively, the government must establish an independent tribunal responsible for resolving quality of service complaints and reaches of the Bill of Rights.

8) Bill 37 be amended to require annual surprise inspections of all long-term care facilities.

9) The target of four hours of direct care for residents must be implemented immediately.

10) The average of four hours per resident should be calculated on a facility by facility basis.

11) Facilities are required to publicly report that they are meeting the four hours of direct services per resident. Explanations must be provided if the four hour standard is not being met.

12) Meaningful penalties must be imposed for failure to meet the four hour direct service average.

[1] http://www.ltccommission-commissionsld.ca/

[2] See, for example, ARCH’s submissions on Bill 175, https://archdisabilitylaw.ca/resource/submissions-on-bill-175/

[3] Ontario Centre for Learning, Research and Innovation, Report February 2019
https://www.ices.on.ca/Publications/Atlases-and-Reports/2019/Addressing-Gaps-in-the-Health-Care-Services-Used-by-Adults-with-Developmental-Disabilities

[4] UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106

[5] Supra ft 1

[6] https://www.usw.ca/news/publications/policy-research-and-submissions/story-document/2021.11.12-USW_Submission-Long-Term-care-Bill-37.pdf

Submission of ARCH Disability Law Centre to the Accessible Canada Directorate, Employment and Social Development Canada Regarding the Proposed Guidance and Template for Preparing Accessibility Plans

November 30, 2021

Introduction

ARCH provides this submission to the Accessible Canada Directorate, Employment and Social Development Canada, regarding the proposed Guidance and Template for Accessibility Plans.

ARCH’s submission draws upon our legal knowledge of and experience with the Accessible Canada Act (ACA),[1] the Canadian Human Rights Act, dispute resolution processes and decisions of the Canadian Human Rights Commission and Tribunal, and the federal courts that review those decisions. In addition, our submission is informed by the experiences of persons with disabilities. It also draws upon our work on ARCH’s Meaningful Participation in Regulation Making Project, funded by the Government of Canada’s Social Development Partnerships Program – Disability Component. This project identified barriers in regulation-making processes under the ACA, and proposed recommendations to make these regulation-making processes more inclusive and accessible.

ARCH Disability Law Centre is a specialty legal clinic that practices exclusively in disability rights law. Since incorporation in 1979, ARCH has been dedicated to defending and advancing the equality rights, entitlements, fundamental freedoms and inclusion of persons with disabilities. ARCH provides a range of legal services directly to persons with disabilities in Ontario. ARCH’s work extends nationally as well. ARCH represents persons with disabilities and disability organizations in precedent setting cases at various provincial and federal tribunals, including the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, and the Canadian Transportation Agency, as well as appellate courts, including the Court of Appeal for Ontario, the Federal Court of Appeal and the Supreme Court of Canada. ARCH has an extensive law reform practice, working on a variety of initiatives to advance the rights of persons with disabilities. ARCH provides public legal education to disability communities, and conducts community development projects to support our law reform work.

ARCH’s Submissions on the Proposed Guidance and Template for Accessibility Plans

A. Guidance Document for Preparing Accessibility Plans

1. General Heading

The general heading of the accessibility plan must “include the manner by which the public can communicate with the regulated entity, namely the civic address of its place of business that is available to the public, a telephone number or an email address”.[2] As such, the guidance document should recommend that organizations include multiple ways to contact the organization to account for accessibility needs of persons with disabilities. It should also recommend that organizations include information about how to request accommodations for making contact with the organization if they are needed.

Guidance could also recommend that organizations integrate the principles in section 6 of the ACA into their vision statement or executive summary, explaining how these principles relate to their overall accessibility strategy.

2. Areas described under section 5 of the Act heading

Some of the recommended information to include under this heading is helpful; for example, that organizations include “concrete and achievable actions your organization is taking (or has already taken) to identify, remove, and prevent barriers in that area” and “policies, programs, practices and services you intend to change in that area, how you plan to change them, and the results you expect from those changes”.[3]

However, some of the recommended information could be further expanded to ensure that organizations set measurable goals with performance indicators, deadlines, and specific responsibilities to meet them, as described later in the guidance document. [4] Additional bullets could be included on page 12 to reflect this, such as:

• Timeframes within which specified actions will take place;
• Performance indicators for measuring whether existing barriers have been successfully removed;
• The position of the person(s) responsible for ensuring that the entire plan and/or each of these actions is implemented; and
• For updated accessibility plans: barriers in the previous plan that were not removed, setbacks or limitations that explain why, strategies that address these challenges, and timelines for implementation of these strategies.

As well, the guidance document discusses both short and long-term accessibility goals. It could recommend that organizations explain how they prioritized their short-term and long-term accessibility goals and how they developed their metrics, with reference to the feedback they received from consultations and their feedback process. Where it may not be feasible to entirely achieve certain goals during the length of the plan or to use ideal metrics to measure progress, guidance could suggest that organizations explain why this would constitute undue hardship.

Finally, the guidance document should suggest that organizations explain how their accessibility goals and plans for achieving them reflect the principles described in section 6 of the ACA.

3. Consultations heading

The recommended information to include about consultations [5] could be more meaningful if the recommended content in the guidance document is further developed and expanded. This additional information could account for the diversity of participants during consultations, how barriers to participation were addressed, and how feedback from consultations was used to inform the plan.

For example, with respect to whom the organization consulted, the guidance document could recommend that organizations describe:

• the diversity of participants, beyond the “range of disabilities represented” [6] to account for intersectional perspectives – for example, whether racialized persons with disabilities, Indigenous persons with disabilities, LGBTQIA2S+ persons with disabilities, and women with disabilities were consulted; and
• whether people with disabilities who are not affiliated with organizations were consulted, as they may also face additional barriers to participation.

With respect to how consultations were conducted, the guidance document could recommend that organizations describe:

• How consultations were advertised, including the use of accessible formats and multiple advertising modes;
• Outreach strategies to engage persons with disabilities who face additional barriers to participation and/or who were underrepresented in previous consultations; and
• Input from participants about whether they thought the consultations were accessible and recommendations for how to address any remaining barriers for the next consultation.

With respect to where consultations were conducted, the guidance could recommend that organizations explicitly address how they engaged rural persons with disabilities, if they serve persons with disabilities in rural areas. Persons with disabilities who live in rural areas often face barriers to attending consultations if they are held in-person in larger centres.

With respect to results of the consultation, the guidance should be more specific regarding its best practice to explain “what your consultations achieved and how you intend to act on them”[7]. The guidance document could recommend that organizations explain, in concrete terms, how the input from consultations informed the goals, timelines, and priorities outlined in the accessibility plan. The guidance document could also suggest that organizations set out any input that was not implemented in the current plan and why that input was not used.

4. Length, detail and design

The guidance document sets out some recommendations for how accessibility plans should be in “simple, clear, and concise language” to comply with the Accessible Canada Regulations[8]. Some of the common-sense tips about how to write a clear and easy to understand document may be helpful; for example: focusing on important information, including shorter sentences with only one idea, avoiding jargon and technical terms, and defining acronyms.

That said, while one of the linked resources, the Canada.ca Content Style Guide, provides information about plain language, the guidance document itself seems to specifically avoid the use of the term “plain language”[9]. It may be preferable to recommend that organizations write their accessibility plans in plain language to meet their regulatory obligations. Accessibility Standards Canada is developing a standard on plain language. This standard has the potential to provide clear guidance for all regulated entities as they create their accessibility plans, progress reports, and feedback processes.

5. Alternate formats

With respect to alternate formats, ARCH recommends that the guidance document provide for best practices including:

• The provision of ASL/LSQ video as a recommended format: Not providing this alternate format will undermine the participation of Deaf people who require ASL and LSQ in order to give feedback to organizations and participate in consultations on accessibility plans and progress reports. Failure to specify ASL and LSQ video as an alternate format in the guidance document is contrary to the section 6 principles in the ACA, including sections 6(e), 6(f), and 6(g), as well as the human rights obligations of regulated entities. The ACA also recognizes that sign languages are “the primary languages for communication by deaf persons in Canada” [10];
• The explicit recognition of the human rights duty that organizations have to accommodate persons with disabilities who ask for alternate formats and to provide alternate formats unless doing so would cause undue hardship. This obligation exists regardless of what is prescribed in the Accessible Canada Regulations;
• It is a best practice to provide accessible formats as soon as possible, regardless of the deadlines in the Accessible Canada Regulations;
• It is also a best practice to create some accessible formats when the accessibility plan is made at the outset, if they are easy to produce. This means that they can be more quickly provided on request; and
• That certain formats often create barriers to accessibility, such as PDF documents, and organizations should avoid them.

B. Draft Optional Accessibility Plan Template

1. General

As described above, the general heading of the accessibility plan template should also include that organizations may want to include multiple ways to contact the organization to account for accessibility needs of persons with disabilities. It should also recommend that organizations include information about how to request accommodations for making contact with the organization if they are needed.

The template could also suggest that organizations integrate the principles in section 6 of the ACA into their vision statement or executive summary, explaining how these principles relate to their overall accessibility strategy.

2. Areas described under section 5 of the Act

The draft accessibility plan template specifically and clearly outlines that organizations should list:

“Actions: Concrete steps you have taken or will take to remove and/or prevent those barriers, including:

• Timelines
• Roles and responsibilities
• Determining and tracking intended outcomes.”[11]

This is consistent with ARCH’s recommendations above regarding the importance of concrete and measurable accessibility goals, with timelines and responsibilities clearly outlined in the accessibility plan. This is a very helpful way of setting this out so that organizations create accessibility plans that are clear, concrete, and meaningful.

3. Consultations

As described above, the consultations section of the accessibility plan template could, as a best practice, recommend that organizations describe the diversity of the participants in the consultation beyond the range of disabilities represented. It could also recommend that organizations explain how they addressed barriers to participation in consultations and how they advertised consultations. Finally, the template could suggest that organizations outline how they used the feedback they received, including feedback they decided not to implement and why.

C. Additional Comments

1. Persons with disabilities as consultants for organizations

The Guidance Materials on Preparing Accessibility Plans describe that “[s]ome disability organizations may also be willing to help evaluate the accessibility of your organization’s service delivery, communications, and both physical and digital environments.”[12] The guidance document should state that persons with disabilities, both affiliated and unaffiliated with organizations, should be hired in a paid consultant role where possible to do this work. Compensation of participants for their time and expertise at industry consultant rates and payment of their related expenses, such as travel expenses, respects the expertise that persons with disabilities bring to the creation of accessibility plans.

2. Additional guidance regarding consulting with persons with disabilities

The proposed guidance document explains at page 13 that additional guidance will be created regarding consulting with persons with disabilities. ARCH Disability Law Centre recommends that the Accessible Canada Directorate take into account ARCH’s findings and recommendations from the Meaningful Participation in Regulation Making Project when creating this additional guidance. ARCH would welcome the opportunity to discuss our findings with staff at the Accessible Canada Directorate and how they could relate to guidance for organizations.

[1] Accessible Canada Act, SC 2019, c 10 [ACA]

[2] Guidance and Templates for Accessibility Plans at 11

[3] Guidance and Templates for Accessibility Plans at 12

[4] Guidance and Templates for Accessibility Plans at 18-19

[5] Guidance and Templates for Accessibility Plans at 13

[6] Guidance and Templates for Accessibility Plans at 13

[7] Guidance and Templates for Accessibility Plans at 13

[8] Guidance and Templates for Accessibility Plans at 14-15

[9] Government of Canada, “Canada.ca Content Style Guide”, online: https://www.canada.ca/en/treasury-board-secretariat/services/government-communications/canada-content-style-guide.html#toc6

[10] ACA, above, s. 5.1(2)

[11] Sample Accessibility Plan Template at 2

[12] Guidance and Templates for Accessibility Plans at 9

ARCH made a submission to the Post-secondary Education Standards Development Committee regarding its 2021 Initial Recommendations Report.

To review ARCH’s full Submission, download it below.

ARCH made a submission to the K-12 Education Standards Development Committee regarding the 2021 Initial Recommendations Report.

To review ARCH’s full Submission, download it below.

ARCH made a submission to the Health Care Standards Development Committee regarding its 2021 Initial Recommendations Report.

To review ARCH’s full Submission, download it below.

As of September 22, 2021, the Ontario Government has put in place a Proof of Vaccination rule for some establishments. This bulletin provides more information about the rule and what it means for persons who cannot get the COVID-19 vaccine because of a disability-related reason.

Ontario’s human rights law says that persons who cannot get a COVID-19 vaccine because of disability-related reasons have a right to be exempt from vaccination requirements.

The Law

Ontario Regulation 645/21 creates the rule that some businesses and establishments are required to obtain from patrons proof of being fully vaccinated against COVID-19 (section 2.1).

The Exemption

Subsection 2.1(6)(c) of the regulation sets out the exemptions to this rule. It states that a person is exempt where they can provide a letter from a physician or a registered nurse in the extended class that explains the person has a documented medical reason for not being fully vaccinated against COVID-19, and the time period for the medical reason.

According to its website, the College of Physicians and Surgeons of Ontario has taken an extremely narrow interpretation of what qualifies as a valid medical exemption:

1. a severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or any of its components, confirmed by an allergist/immunologist, that cannot be mitigated; or
2. a diagnosed episode of myocarditis/pericarditis after receipt of an mRNA vaccine.

It has been reported that many establishments are also putting in place vaccination policies that are extremely narrow, or they are refusing service to persons who cannot be vaccinated, even if the reason is because of their disability.

These practices are problematic and troubling because they are discriminatory towards persons who cannot be vaccinated for disability-related reasons. Human rights protections under Ontario’s Human Rights Code continue to fully apply during a pandemic. Service providers are bound by the duty to accommodate, which require them to provide services that meet the individual disability-related needs of their patrons. Exempting persons who cannot received the vaccine because of their disability is a reasonable accommodation within the meaning of the Code.

Resources:

Read ARCH’s public letter to the College of Physicians and Surgeons of Ontario raising concerns about their interpretation of the proof of vaccination rules.

For more information, read the Ontario Human Rights Commission’s policy statement on COVID-19 vaccine mandates and proof of vaccine certificates and Questions and Answers about COVID-19 and the Human Rights Code .

Persons with disabilities who live in Ontario can call ARCH for free, confidential legal information and summary advice. To find out about the kind of legal advice ARCH provides and how to book an appointment, please use the following link: ARCH Services

* Information provided in these materials is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. This information is current as of October 6, 2021

Is my employer allowed to say no to my request for accommodation?

What does the law say?

• Ontario’s Human Rights Code says that employers must provide disability-related accommodations, unless the qualification or standard is a justified job requirement, or if it causes the employer undue hardship.

Justified Job Requirement

• If your request for accommodation is about a workplace qualification or standard then the employer may be able to justify saying no to your request on the basis that the qualification or standard is essential for the job that they hired you to do.
• To prove this, the employer must show that the qualification or standard:
  • Is connected to performing the job;
  • Was put in place honestly and in good faith; and
  • Cannot be changed without causing the employer undue hardship.
• Sometimes, if the qualification or standard is essential for the job, the employer may be obligated to offer you another job that does not have those qualifications or standards.

Example

• You were hired for the job of a delivery driver.
• Your disability-related needs prevent you from driving a truck.
• Being able to operate a delivery truck safely may be a justified job requirement.
• Your employer may be able to say no to your request, but may have to work with you to find a different job that works for your needs.

Undue Hardship

• The employer is not required to provide the accommodation if it causes the employer hardship that reaches the point of being “undue.”
• Undue is a legal term. The law says that only three things can be considered when assessing whether an accommodation would cause undue hardship. Those are:
  • Cost;
  • Outside sources of funding; if any; or
  • Health and safety requirements.
• No other factors can be considered. For example, inconvenience is not a factor for assessing whether the employer is permitted to say no to your accommodation request.
• If your employer shows you that your request for accommodation will cause them undue hardship, they are obligated to work with you to find a different accommodation that works for your disability-related needs.

Example

• You work at a small family-owned flower shop in an old building.
• You request that they install an elevator for your disability-related needs.
• Because your employer is a small business, installing an elevator may be so costly that it causes your employer undue hardship.
• Your employer may be allowed to say no to installing an elevator, but they are required to keep working with you to find another solution.

Note: federally-regulated employment

• For employers that are federally-regulated (like banks and air transportation companies), the Canadian Human Rights Act (the CHRA) applies. Some of the laws are different for these kinds of employment relationships.

For specific questions about your situation, including what law applies, persons with disabilities who live in Ontario can call ARCH for free, confidential summary legal information and advice. To find out about the kind of legal advice ARCH provides and how to book an appointment, go to: https://archdisabilitylaw.ca/services

Disclaimer: This Factsheet is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. This information is current as of March 2020.

© ARCH Disability Law Centre, 2020

What are my rights for disability-related accommodations at work?

What does the law say?

• Ontario’s Human Rights Code (the Code) is a provincial law that says persons with disabilities in Ontario have the right to be free from discrimination in employment.
• Persons with disabilities are protected from discrimination in all stages of the employment relationship, including applying for a job, recruitment, interviews, returning to work after time off for a disability-related reason, and termination.
• The law says that persons with disabilities have the right to access equal opportunities, such as training, rate of pay, performance evaluations, and promotions.
• The protection includes all kinds of employment relationships, including short-term work, part-time work, internships and volunteer positions.

Duty to Accommodate

• The Code says that employers have a duty to accommodate persons with disabilities.
• Accommodations are things that give persons with disabilities equal opportunity to get a job and perform their job in a meaningful way.
• Barriers at work may include:
  • physical barriers, such as inaccessible buildings, technologies or workspaces, or
  • non-physical barriers, such as attitudinal barriers, workplace rules, or job qualifications.
• This Factsheet is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. This information is current as of March 2020.
• The duty to accommodate means that your employer has to listen to your request for accommodation and work cooperatively with you to find a solution that meets your needs.
• Your employer is required to pay for the accommodation.

How do I make a request for accommodation?

• It is your responsibility to make your disability-related accommodation needs known to your employer.
• It is best to make your request in writing as early as possible.
• Accommodation requests should be made to the person who has the authority to put the accommodation in place, such as your boss or manager.

Is my employer allowed to ask for medical information?

• Your employer is allowed to ask for more information in order to understand your disability-related needs. The law says these requests are allowed as long as they are limited to only the necessary information.
• You do not have to share the cause of your disability or your diagnosis with your employer.
• The kinds of information that may be important to share with your employer are notes from your doctor explaining your abilities, needs, and limitations.

I’m concerned about privacy. Will other people have access to my information?

• The law says your employer must keep your accommodation request and any supporting documents confidential.
• The only persons who are allowed to have access to this information are those who need to be a part of putting the accommodation in place.

Note: federally-regulated employment

• For employers that are federally-regulated (like banks and air transportation companies), the Canadian Human Rights Act (the CHRA) applies. Some of the laws are different for these kinds of employment relationships.

For specific questions about your situation, including what law applies, persons with disabilities who live in Ontario can call ARCH for free, confidential summary legal information and advice. To find out about the kind of legal advice ARCH provides and how to book an appointment, go to: https://archdisabilitylaw.ca/services

Disclaimer: This Factsheet is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. This information is current as of March 2020.

© ARCH Disability Law Centre, 2020

Article written and published in Qualitative Social Work Journal.
2021, Vol. 20 (1-2) 83-89

Go here for the for article on the Qualitative Social Work Journal: https://journals.sagepub.com/doi/full/10.1177/1473325020981755

July 15, 2021

Introduction

ARCH made submissions to the Ministry of Health on proposed Regulations to the  Connecting People to Home and Community Care Act (CPHCCA). This document is a copy of the submissions we made, in an accessible format. 

In preparation for making submissions on the proposed regulations, ARCH conducted a survey and held focus groups with persons with disabilities who will be directly affected by these regulations. It is important for the Ministry to know, at the outset, that ARCH’s responses to the proposed regulations are informed by the lived experiences of persons with permanent disabilities who use attendant services.  

ARCH’s primary concern is that the information is presented in a slide deck format, and not as a draft regulation.  The slide deck does not translate into a regulation, nor does the information provided tell us how the regulation will be implemented. ARCH, and communities of persons with disabilities, ask for an opportunity to comment on the regulations once they are finalized by the Ministry, but before they are adopted, so we can understand the regulations in a more fulsome and contextual manner, and consult on the language that is actually used.  

1. ARCH strongly recommends that an accessible and transparent process be developed to ensure input once draft regulation is released.

Scope of Services

Traditional Healing and Indigenous Cultural Support Services

ARCH acknowledges the Ministry’s introduction of Traditional Healing and Indigenous Cultural Support Services for Indigenous persons. We wish to emphasize the need for culturally appropriate services and the meaningful engagement of Indigenous leaders and communities in the development of these services. ARCH recommends that the Ministry ensure that Elders, leaders, and members of Indigenous communities are actively engaged and are meaningful participants in the process of developing and designing these services.

2. ARCH recommends that the Ministry ensure that Elders, leaders, and members of Indigenous communities are actively engaged and are meaningful participants in the process of developing and designing these services.

Other Supports

ARCH supports the Ministry’s introduction of bereavement services, behavioural supports, and education, prevention, and awareness services in a number of areas.  

3. ARCH recommends that experts be consulted in each area and to make sure that the Ministry is funding and providing these services in an accessible, accommodated and culturally appropriate manner.

4. We also recommend that when introducing the new services, the Ministry use the word, “includes” so that the list of new services is not finite but instead, open-ended. This would allow new and additional services to be added in the future.    

Service Maximums

ARCH supports the removal of service maximums. However, we are concerned that once service caps are removed, there will not be adequate and appropriate services in place to meet consumer demand. Our experience is that consumers do not have their service needs met now, within a current service plan. For example, we have a client who has been assessed for, and is entitled to, 240 hours of attendant services per month. At present, he is not receiving any attendant services because of the severe shortage of PSWs in his region. ARCH would therefore like additional information about how services will be adequately provided to all consumers in the future. No consumer should be worse off under the new regulations.

5. ARCH recommends that additional resources be dedicated to the home and community service sector to meet the demands that may arise due to the removal of service maximums. 

6. ARCH recommends that there be no reduction in services for consumers to make up a shortfall in available hours.

We also ask for assurance that no consumer will be left without services, and that agencies have policies about what to do when a scheduled PSW is not available. Consumer’s back-up plans should not be relied on to replace home and communication services.  

7. ARCH recommends that the Ministry address how “no shows” for attendant service delivery will be met to ensure essential coverage for consumers.

8. ARCH recommends that that the Ministry direct agencies develop policies to address cancellation of services, without reliance on a consumer’s back up plan.

Equity of Access

ARCH is concerned by the lack of information about what is meant by “service allocation to support equity of access” and how it may be interpreted. Equity of access cannot replace an individualized assessment, which takes into consideration the individual’s disability and related supports so they can live independently in the community. Moreover, service allocation to support equity of access is not defined in the HCC slide deck.

ARCH is very concerned with the increased use of inter-rai assessments, as a replacement for actual in person and individualized assessments. The inter-rai assessment tool fails to take in consideration the individual’s unique experience of disability.  The inter-rai tool only reflects what is measurable, without consideration of those unmeasurable qualities that assess an individual and their actual needs. In addition, the standardized assessment only measures what is contained in the assessment, and does not take a human rights and individualized approach. 

9. ARCH recommends the Ministry maintain and ensure individualized assessments are used to determine service needs.

Client/Patient Eligibility Requirements

Transitions

The Ministry proposes to provide personal support in long-term care homes for a transition period to newly admitted persons with behavioural issues. All persons transferred to long-term care facilities would benefit from transitional services given a new setting that is, in essence, the complete opposite of independent living.

10. ARCH recommends a transparent and accountable process for identifying transition support needs in line with human rights principles that require individualized approaches to support and transition.

Traditional Healing and Indigenous Cultural Supports

The Ministry asked for feedback on the eligibility criteria for these services. ARCH advised that their questions must be directed to the communities who are impacted by this recommendation.

Care Coordination

11. ARCH recommends that care plans must be provided in accessible format to the person using attendant services.

The proposed regulations state that “Care coordinators go beyond the functions articulated in regulation.” ARCH is concerned that no detail about what those additional functions are is provided. For example, will care coordinators take into account issues like service delivery in regional, rural, northern and Indigenous communities? How will these issues be determined?  Does this mean that Care Coordinators will be able to exercise discretion? What kinds of issues would Care Coordinators be permitted to “go beyond the functions articulated in regulation”? 

12. ARCH recommends that the Ministry describe what these additional functions are in the regulation. 

The slide deck says that Health Service Providers (HSPs) and Ontario Health Teams (OHTs) can implement new models of care and that they can assign care coordination differently among care partners. ARCH is concerned that this will result in a patchwork system of delivering attendant services across the province.

13. ARCH recommends a transparent and open process for making determinations on new models of care and the assignment of care coordination.

14. ARCH recommends that the Ministry identify new models of care that are being considered and ensure that persons with disabilities have an opportunity to comment on them.

15. ARCH recommend that the Ministry identify how OHTs and HSPs will assign care coordination differently among care partners.

Consumers of Attendant Services

The illustration provided on Slide 15 does not apply to consumers of attendant services. It is about patients being released from hospital. As ARCH has stated in previous submissions, patients being released from hospital are often not consumers of attendant services and they are not interchangeable groups of people.  We are concerned that these regulations, on whole, will conflate the needs of very different cohorts and that persons with permanent disabilities will not get the full suite of services available. 

16. ARCH recommends that this regulation focus only on consumers of attendant services.

17. ARCH recommends that the word “consumer” replace “patient” in the regulation.

Care Planning

The Ministry requested feedback on the factors to be considered when planning care. The Ministry proposes that when a care plan is developed, the planner should take into consideration, “the effective and efficient management of human, financial, and other resources.” ARCH is concerned that with the removal of services caps, consumers will face cutbacks in service delivery to make up for financial shortfalls. The availability of appropriate human resources for service delivery should be the primary consideration, before financial interests. The Ministry must also make sure that the attendant services sector receives sufficient and appropriate funding to ensure that consumers receive all of the services that they require. In a survey conducted by ARCH, a vast majority of consumers told us that they are not getting enough attendant service hours to meet their needs and that there are not an adequate number of PSWs to provide these services. Resource issues should not be used to defeat service needs and the delivery of quality services.   

 18. ARCH recommends that the Ministry commit to fully funding attendant services to ensure they meet all of the needs of all consumers.

Virtual services

The Ministry included a provision that requires the person creating the care plan to take into account “the relative costs and benefits of providing services inside and/or outside the home and in-person or virtually.” ARCH is concerned about this provision.

Virtual services may not be accessible to some consumers, either because they may not have the required technology, or the platforms used are not accessible. For example, there is a service that some doctors now use to share health information with the user of attendant services and other health care providers. However, that platform cannot be read by screen readers, which means that consumers with vision disabilities are denied access to it.

19. ARCH recommends that the Ministry ensures that virtual services are only an option when they are accessible, and where the services provided are of the same quality both in person and virtually.                           

Family and other supports

The proposed regulations outline that the availability of family and other supports should be taken into consideration when planning services. ARCH submits that the availability of family and other informal service supports should never be a substitute for the delivery of professional, high-quality services. While it may be that a family member can, in limited circumstances, supplement publicly funded attendant services, they cannot be used instead of providing professional and quality services.

Additional Rules for Care Coordination Functions

The Ministry wanted further feedback on whether there were any additional rules or parameters that the Ministry should consider regarding a HSTs and OHTs assign of care coordination functions.

In response to this request, ARCH outlined, if the Ministry is going to allow contracted agencies to coordinate care, it is important that the Ministry explain how the HSPs and OHTs will manage, supervise and account for the actions of contracted agencies, to ensure that they are effectively coordinating services. Moreover, there should be specific oversight, compliance, and enforcement provisions, to hold HSPs and OHTs accountable for any actions of contracted agencies. Penalties for lack of accountability and oversight should be significant, to ensure that appropriate coordination of quality care services are respected and in place. Consumers of attendant services are entitled to quality services that do not depend on a contracted party making money for investors. Quality, not financial considerations should drive service provision to persons with disabilities, many of whom are low-income and can’t afford to pay for private services.             

In the draft regulation the Ministry proposes to set out detailed expectations and guidance on care coordination in policy. ARCH asks why accountability is not set out in the regulation itself. Accountability should be a key feature of the regulation, given the horrific discoveries of abuse and neglect, leading to death, in long-term care facilities during the COVID-19 pandemic.  Persons with disabilities who rely on attendant services to live in the community should not be held hostage to agencies that are not held accountable by the force of regulations but rather unenforceable interpretations of “policy”.

20. ARCH strongly recommends that an accountability framework be detailed in the regulations.

Bill of Rights, Locations of Service, Eligible Providers, Methods of Delivery

Bill of Rights

ARCH supports the Ministry’s proposed additions to the Bill of Rights. In particular, ARCH supports the right for consumers to be dealt with in a manner that is free from discrimination, in accordance with Ontario’s Human Rights Code. We also support the inclusion of clear and accessible information in the consumer’s service plan.

21. ARCH recommends that the right to clear and accessible information and communication apply to all service provider communications with consumers. 

The emphasis on consumer participation in decision-making about their service is also a key right. 

22. ARCH recommends that supports to communication and decision-making will be provided to ensure a consumer’s right to participate in their treatment plan, and in any decision-making regarding their service needs, and delivery of services. 

In ARCH’s questionnaire and focus groups, participants recommended that additional rights be included in the Bill of Rights.

23. ARCH recommends that the following rights be added:

A. The right for consumers to choose how attendant services are provided;
B. The right for consumers to assist in the selection of attendants;
C. The right for the consumer to report concerns to management AND to have those concerns addressed promptly;
D. The right to participate in restorative practices with attendants to resolve complaints, about training for attendants, the independent living philosophy, conflict management and resolution or any other issues that affect the consumer’s interests;
E. The right to a Consumer Advisory Committee in supportive living units, this Committee must be consulted when an agency creates policies. Other congregate care settings must also have a Consumer Advisory Board;
F. The right to access an impartial third party for resolution of any/all complaints.

Locations of Services

ARCH is concerned that the Ministry is proposing that home and community services will no longer be offered in hospitals. Most PSWs are trained in ways hospital staff may not be. They are familiar with the consumer and how services should be delivered to an individual safely and in accordance with their wishes. In addition, these regulations need to be harmonized with other proposed regulations, such as the Health Care Standard under the Accessibility for Ontarians with Disabilities Act, which may conflict with these proposed regulations. 

24. ARCH recommends that consumers retain the right to have their PSW available to them while in hospital.     

Eligible Providers

ARCH supports the Ministry’s decision to not contract with for- profit services when providing community support services. Private companies may sacrifice quality of services for fiscal efficiency, as clearly seen in long-term care facilities during the pandemic.

25. ARCH recommends that the Ministry go further, and mandate that HSPs and OHTs cannot contract with for-profit agencies for home and community services.

Plans to Prevent Abuse, Complaints, Appeals, Patient Ombudsman

Plans to Prevent Abuse

ARCH agrees that agencies must have plans to prevent abuse.

26. ARCH recommends the Ministry require that agencies take into account intersectional identities when drafting these plans or investigating abuse.

27. ARCH recommends that all allegations of abuse must be investigated and a written response provided to the consumer.

28. ARCH recommends that agency plans are included as part of all service contracts, in an accessible format.

29. ARCH recommends that abuse plans include resources for consumers so they can get information or advice about abuse, including counselling, police services and legal assistance.

30. ARCH recommends that data be kept on all allegations of abuse, the outcome of investigations, and the steps taken as a result of any investigation. This information should be publicly available in an annual report from Ontario Health.

Complaints

ARCH supports the addition of a shortened timeline (10 days) for complaints that allege abuse, harm, or risk of harm.

31. ARCH recommends that the timeline to handle all other complaints be shortened to 30 days, thereby encouraging prompt and efficient resolution of complaints or referrals to other complaint mechanisms available to the consumer.

32. ARCH recommends that the agency advise the consumer of what additional steps are available to them and provide resources about where the consumer can get advice and/or assistance.     

Appeals

ARCH has made numerous submissions to the Ministry on the appeals process available to consumers. Our survey responses and focus groups highlighted the importance of a fulsome complaints and resolution process. We were told that the current list of appealable issues is too narrow. We were also told that consumers are not satisfied with any appeals process that does not have an independent third party decision-maker.

 33. ARCH recommends that the Ministry either:

A. Establish an independent body to determine quality of service appeals or review internal decisions made by the service provider or
B. Expand the jurisdiction of HSARB to include quality of service complaints, which would include violations of the Bill of Rights.

Self-Directed Care, Residential Congregate Care, Other Related Amendments

Self-Directed Care

It is not clear to ARCH what “self-directed care” means on Slide 31.  Is the Ministry proposing that the Direct Funding Program be taken over by OHTs and HSPs?  If that is the intent of these regulations, there must be a broader and more extensive consultation on this issue.

However, if the government is referring to the current Family Managed Program provided by the LHIN, ARCH has learned from our communities that this program requires significant revision. In particular, the current program states that once a child turns 18, if there is concern about the child’s decision-making capacity, their parents must obtain a Power of Attorney or Guardianship. This undermines the decision-making rights of the individual receiving the services.  

34. ARCH recommends the regulation be clear that supports and services will be provided to enhance the decision-making rights and participation of the individual receiving services.  

Residential Congregate Care

ARCH requires further information on these settings, and would ask that we be part of the further consultations described in the slide deck.             

Other Feedback

The Ministry asked for any additional feedback on the regulations.

ARCH’s feedback is based on our consultations with consumers of attendant services. In October 2020, and February 2021, ARCH conducted both a survey and focus groups on what the proposed regulations might address. To read more about the results of the survey and the focus groups, go to: Connecting People to Home and Community Care: Survey Results

Use of the Word Patient is incorrect

The language used throughout the proposed Regulations is inconsistent with the language used by persons with disabilities to describe themselves, and one that has been adopted by the home and community services sector.  Persons with disabilities who receive home and community services are not “patients”. ARCH argues for the use of “people with disabilities” or “consumers”. Given that these terms reflect how persons with disabilities describe themselves, we urge the Government to adopt disability positive language.  In addition, the regulation must make it clear who is being addressed in this regulation.

Environmental Scans

ARCH also asks that the Ministry undertake environmental scans every three years to ensure that rural, remote, northern and Indigenous service needs are the focus of PSW recruitment, and so that persons with disabilities in under-serviced areas have their needs met on a basis equal to urban centres.  This requirement must be in the Regulations to ensure that the Ministry performs this function.

Clear and Accessible Language

ARCH submits the reposted Regulations and accompanying documents be provided in clear and accessible language to avoid misunderstandings or need for additional clarification. The Regulations must be clearly drafted so persons with disabilities know their obligations and/or rights and the services available to them. They must know what agency or body will respond to questions or complaints.  This information must be part of each individual’s service plan.

Harmonization of legislation and regulations

ARCH submits that the Ministry must ensure that these regulations are harmonized with existing legislation and regulations to avoid conflicts and misunderstanding.

Annual Report

Ontario Health must issue an Annual Report, available publicly, on compliance, enforcement, delivery of services and needs met, unmet needs and complaints and their outcomes.

Ministry Spot Checks

The regulations must provide for Ministry spot checks to ensure that agencies and OHTs/HSPs are operating as they should and in accordance with the Act and Regulations.

Need for further consultation

The Draft Regulation must be made available for consultation.  The present process in no way replaces the need for an open and transparent process to consult on the Draft Regulation to ensure that it is considered in a more fulsome and contextual manner, and on the language that is actually used.