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Cole v Ontario (Health and Long-Term Care) : Challenging the funding limits to live in community settings

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The applicant, Ian Cole, is a middle-aged man with a severe intellectual disability who lives in the community. To live in the community, Mr. Cole depends on the receipt of nursing services. The primary source of funding for the nursing services is his local Community Care Access Centre (CCAC). The maximum funding for nursing services is set out in a regulation made under the Home Care and Community Services Act, 1994.  At the time the application was filed, funding was available for nursing services to a maximum of four visits per day.

In 2012, Mr. Cole’s doctor determined that he needed a fifth catheterization every day as a result of his neurogenic bladder. The local CCAC denied Mr. Cole’s request for this fifth catheterization, because of the funding limit of four nursing visits per day set out in the regulation.

In 2013, Mr. Cole filed an Application with the Human Rights Tribunal of Ontario (Tribunal) against the Ministry of Health and Long-Term Care (Ministry), through his litigation guardian, Audrey Cole (his mother).  Mr. Cole alleged that the funding limit in the regulation discriminated against him and other people with complex disability-related needs because they are denied the level of services that they require to remain outside of institutional care. The Ontario Human Rights Commission (OHRC) intervened in the case to assert that the regulation amounts to discrimination against Mr. Cole based on disability contrary to section 1 of the Code and is not protected as a “special program” as  provided for  in section 14 of the Code.  The Canadian Association for Community Living, Community Living Ontario and People First Ontario (the “Coalition”) also intervened. 

On October 1, 2015, the Ontario government amended the regulation made under the Home Care and Community Services Act, 1994.  The cap on nursing visits was increased from four to five per day. Based on this change, the Ministry asked the Tribunal to dismiss the Application because it was moot. The Tribunal denied this request. It found that the question of whether Mr. Cole was discriminated against based on the old cap was still a live issue.

The OHRC’s and the Coalition’s Settlement with the Ministry

On June 8, 2016, the OHRC and Coalition entered into a settlement with the Ministry. The Ministry agreed to issue a memorandum to CCACs regarding service maximums in the regulation.  The memorandum requires CCACs to consider the full range of service options based on client need and provide the necessary referrals to additional community support services or inter-professional resources in primary care practices for clients who are receiving or reaching the service maximums to help them continue to live independently in the community.  CCACs are required to advise the Ministry contacts of these cases.  Ministry contacts will refer these cases to the appropriate Local Health Integration Networks (LHINs) and assist the CCACs and/or LHINs, where needed and possible, in identifying possible solutions. 

The Ministry also agreed to initiate a consultation process with community representatives in order to address systemic reform within the home care and community services system for persons with intellectual disabilities. 

The consultation process will address both long term and short term proposals to improve the delivery of home care and community services. The process will be informed by both generalized and individual experiences of persons with intellectual disabilities, taking into consideration those whose desire to live in the community is circumscribed by their current access to home care and community services. The following principles will guide the consultation process:

  • A person/patient-centred focus and integrated care planning;
  • Greater use of self-directed approaches to deliver these services;
  • Individualized care planning and supports;
  • Home care and community services should be available for persons in their own homes;
  • Successful practices in other jurisdictions to identify potential models; and
  • Current providers of home care and community services will benefit from a modernized policy and program framework.

The Ministry initiated the process in September 2016 and will prepare a summary of the consultation process by August 2017. The Ministry will consider this summary when developing home care and community services policy and programs that may affect persons with intellectual disabilities.

Mr. Cole’s Settlement with the Ministry

On August 16, 2016, Mr. Cole and the Ministry entered into a settlement agreement.

The Ministry acknowledged that the previous regulation, with its rigid caps, “had the potential to create hardship and disadvantage for individuals with intellectual and developmental disability living in community settings or long-term care homes.”

The Ministry also agreed to recommend that CCASs be granted discretion to exceed the nursing caps in the regulation for those with “complex care needs”.