Bill 41 Patients First Act passed without key amendments from nonprofits
Bill 41, the Patients First Act, was passed in December 2016. The health care legislation was intended to increase access to care and better coordination and continuity by merging Community Care Access Centres (CCACs) into Local Health Integration Networks (LHINs).
There is concern that the Ontario government is opening the door to for-profit providers to participate in the public healthcare system, namely by allowing for-profit community support services. ONN had identified this as a concern last year and had made a submission to the Standing Committee. We also noted that the Act allowed LHIN-appointed supervisors to take over the assets and programs of community-governed nonprofits with accountabilities to multiple funders and, in many cases, subject to charitable regulations under the Income Tax Act.
Many nonprofits added their voices in calling for amendments, along with MPPs. We were informed that these issues would be dealt with in the regulation stage. ONN is dismayed to note that the draft regulations released to date appear to provide no such reassurance and we encourage organizations to voice their concerns to the Minister of Health. The Ontario Association of Non-Profit Homes and Services for Seniors and the Ontario Community Support Association have issued news releases calling attention to creeping privatization of healthcare and community services for seniors. ONN will continue to advocate for regulations to address these concerns as Patients First legislation may be precedent-setting.
Early Words – Hamilton Preschool Speech & Language Service, Central South Infant Hearing Program and Central South Blind Low Vision Program
Stride – Supported Training & Rehabilitation in Diverse Environments
Government of Ontario news release: Ontario Reintroduces Legislation to Further Improve Patient Access and Experience
Association of Ontario Health Centres – Submission
Ontario Community Support Association – Update- Patients First Act
Bill 41, the Patients First Act, 2016, could affect nonprofits with service contracts or transfer payment agreements with any level of government and is of vital importance if your organization receives health funding from the provincial government. The bill (formerly Bill 210) is now being reviewed by the Standing Committee on the Legislative Assembly.
The legislation aims to “increase access to care with better coordination and continuity,” according to the Ministry of Health and Long-Term Care. Bill 41 would see Community Care Access Centres (CCACs) merged into the Local Health Integration Networks (LHINs). CCACs currently provide care coordination and case management for home care services (including contracting with nonprofit and for-profit service providers), while the LHINs are responsible for planning, integrating, and funding health care within their area.
While ONN supports the objective of improving coordination and continuity between service providers, there are two areas of Bill 41 that have serious consequences for individual community-governed nonprofits and the sector as a whole:
- Bill 41 must not permit the introduction of LHIN-funded community support services by profit-seeking providers.
Bill 41 opens the door for increased for-profit delivery of community support services. It is believed to be an unintended consequence of the amalgamation of LHINs and CCACs. Regardless of the reason, it’s very important that the legislation be amended to ensure that LHIN-funded community support services continue to be not-for-profit.
The bill must prevent the introduction of profit-seeking organizations into the delivery of community support services.
- Bill 41 must carefully circumscribe the powers of a LHIN-appointed “supervisor” so it doesn’t conflict with the corporate law and corporate governance of independent nonprofit organizations
Bill 41, as currently drafted, permits the LHIN to appoint a supervisor to take over an organization. This power is unrestricted (no clear criteria), unilateral (no right of appeal and no Minister or Cabinet approval required), and indefinite (no time limit or review process for ending supervisor powers). While hospitals and long-term care homes are exempt from these supervisory provisions, community health care providers are not.
Bill 41 conflicts with the legal requirement for incorporated nonprofits to have a functioning and accountable board of directors—duly elected community volunteers who can be removed before their term expires only by the will of the organization’s members.
This takeover power, and the lack of safeguard and due process, is in stark contrast to the provisions in other provincial legislation. This includes the Services and Supports to Promote Inclusion of Persons with Developmental Disabilities Act 2008, and the Long-term Care Homes Act, 2007. These acts legislate services to people in vulnerable situations but still contain safeguards for funder overreach. Bill 41 provides no rationale for why similar basic principles of fairness and due process are absent for community health service providers.
The implications of being taken over by a LHIN-appointed “supervisor” are even more significant for multi-funded community-based organizations that receive only a portion of their funding from the LHIN.
For example, consider that neighbourhood centres/settlement houses may receive funding from: the Ministry of Community and Social Services, the Ministry of Children and Youth Services, a local municipality, the federal department of Immigration, Refugees, and Citizenship, and other ministries and agencies. How would these other funders react to a LHIN unilaterally taking over an organization with which they had a contract or transfer payment agreement? Would the “supervisor” then become responsible for reporting to these funders?
For a third party to take control over the assets and non-health programs of an independent community-governed nonprofit is legally questionable and unnecessarily intrusive.
Fair treatment and respect
Community services providers bring valuable local knowledge and service delivery expertise to the service partnership, which can often result in better services.
Service providers recognize that the funder has discretion over whether to contract with an organization for a service and can specify the services to be provided and the cost. They understand regular reporting is needed to assure that services are meeting standards and participants are not at risk, with additional reviews and investigations sometimes needed. However, community services providers expect notice of complaints/concerns, opportunities to correct statements of fact in reports, the ability to provide their perspective on the issues at hand and timely appeal processes beyond the LHIN.