Acts and Regulations

N-11 - Nursing Homes Act

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Document at 17 January 2014
CHAPTER N-11
Nursing Homes Act
Assented to May 18, 1982
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Definitions
1In this Act
“Director” means the Director of Nursing Home Services appointed under section 2;(Directeur)
“inspector” means an inspector appointed under section 25;(inspecteur)
“licence” means a licence issued under section 4 and includes any renewal thereof;(permis)
“licensee” means a person who holds a licence;(titulaire d’un permis)
“Minister” means the Minister of Social Development and includes any person designated by the Minister to act on the Minister’s behalf;(Ministre)
“nursing home” means a residential facility operated, whether for profit or not, for the purpose of supervisory, personal or nursing care for seven or more persons who are not related by blood or marriage to the operator of the home and who by reason of age, infirmity or mental or physical disability are not fully able to care for themselves but does not include an institution operated under the Mental Health Act, the Hospital Services Act, the Hospital Act or the Family Services Act;(foyer de soins)
“operator” means a person who by himself or through his agent operates a nursing home and includes a partnership registered under the Partnerships and Business Names Registration Act, a limited partnership, a corporation or an association;(exploitant)
“resident” means a person admitted to and residing in a nursing home.(pensionnaire)
1984, c.L-9.1, s.49; 1986, c.8, s.89; 1986, c.62, s.24; 1987, c.6, s.74; 1992, c.52, s.22; 2000, c.26, s.230; 2008, c.6, s.33
Administration
2(1)The Minister is responsible for the administration of this Act and may designate persons to act on his behalf.
2(2)A Director of Nursing Home Services shall be appointed in accordance with the Civil Service Act.
Prohibitions respecting nursing homes
3(1)Without the prior written approval of the Minister, no person shall incorporate a company for purposes of, or one of the objects of which is, establishing, operating or maintaining a nursing home.
3(2)No person shall establish, operate or maintain a nursing home unless he holds a licence.
3(3)No person shall use the term nursing home or words of like import in connection with any premises unless he holds a licence.
Issuance and renewal of licence
4(1)The Minister, upon application in accordance with the regulations, may issue a licence to a person for purposes of establishing, operating or maintaining a nursing home.
4(2)A licence is valid for a period of time determined in accordance with the regulations.
4(3)The Minister, upon application in accordance with the regulations, may renew a licence.
4(4)The Minister may refuse to issue or renew a licence under this section if he is not satisfied that it is in the public interest to establish, operate or maintain a nursing home
(a) in the area where the applicant proposes to establish, operate and maintain the nursing home, or
(b) with a total bed capacity as proposed by the applicant.
4(5)A licence is subject to the terms and conditions prescribed by the regulations and such additional terms and conditions as the Minister considers appropriate.
Display of licence
5A licensee shall at all times display his licence in a conspicuous place within the nursing home.
Licence not transferable
6(1)A licence is not transferable.
Notification of change in corporation
6(2)Where a licensee is a corporation, the licensee shall notify the Director in writing of any change in the officers or directors of the corporation within fifteen days after the change.
Modification or revocation of or refusal to renew licence
7(1)The Minister may modify, revoke or refuse to renew a licence if, in his opinion based on reasonable grounds,
(a) the operator or the nursing home fails to meet the requirements of this Act and the regulations;
(b) the operator of a nursing home violates any provision of this Act or the regulations;
(c) the operator fails to comply with the terms and conditions to which the licence is subject;
(d) a person has made a false statement in the application for the licence or a renewal thereof or in any report, document or other information required to be furnished under this Act or the regulations or by any other Act or regulation that applies to a nursing home; or
(e) the operator operates the nursing home in a manner which prejudices the health, safety or welfare of the residents.
7(2)An operator who considers himself aggrieved by an action or decision of the Minister under this section may, within thirty days after receipt of notice of the action or decision, request that the Minister review his action or decision.
7(3)Upon receiving a request under subsection (2), the Minister shall review his action or decision and may confirm, vacate or alter it.
1985, c.4, s.50
Delivery of records
8Where a licence is revoked, a renewal of a licence is refused or a licence expires and is not renewed, the operator shall deliver to the Minister all records in his possession or control and that pertain to the residents of the nursing home.
Arrangements to vacate
9(1)Where a licence is revoked, a renewal of a licence is refused or a licence expires and is not renewed, the residents shall arrange to vacate the nursing home as soon as is practicable and the Director shall assist in finding alternate accommodations.
9(2)Where a resident is unable on his own to vacate a nursing home as required under subsection (1), his next of kin or legal representative shall assist him in doing so.
Appointment of trustee
10(1)Where,
(a) in the opinion of the Minister based on reasonable grounds,
(i) a nursing home is not functioning effectively,
(ii) the operator or the nursing home fails to meet the requirements of this Act and the regulations,
(iii) the operator of a nursing home violates any provision of this Act or the regulations, or
(iv) the operator fails to comply with the terms and conditions to which his licence is subject, or
(b) the licence of a nursing home has been revoked, a renewal of a licence is refused or a licence expires and is not renewed,
the Lieutenant-Governor in Council may appoint a trustee, for a term not exceeding twelve months, in whom shall be vested upon such appointment, without further action, all property, powers, duties and liabilities of the operator in relation to the nursing home, including all bank accounts, safety deposit boxes or trust funds in the name of, or in the control of the operator and also including any trusts controlled or administered by any person on behalf of the operator in relation to the nursing homes or the residents thereof.
10(2)On the appointment of a trustee under subsection (1), any contract or other arrangement for the administration of the nursing home, except a collective agreement, is suspended unless otherwise directed in writing by the trustee.
10(3)The trustee shall have access to all books, records and other documents relating to the operation of the nursing home and, for the purposes of this section, the trustee has the powers of commissioners under the Inquiries Act.
10(4)The trustee may operate the nursing home and may engage, direct and dismiss staff, purchase goods and supplies, enter into contracts and otherwise engage in any activity necessary to the operation of the nursing home.
10(5)The trustee shall be deemed to be the employer for the purposes of any collective agreement in force in relation to employees of the nursing home and for purposes of negotiating and entering into a collective agreement.
10(6)The trustee may take action against the operator of a nursing home on behalf of beneficiaries of any trusts held by the operator.
10(7)A trustee appointed under this section shall from time to time and at all times be indemnified and saved harmless out of the funds of the operator of the nursing home from and against all costs, charges and expenses whatsoever that the trustee sustains or incurs in or about any action, suit or proceeding against him for or in respect of any act, deed, matter or thing whatsoever made, done or permitted by him in or about the execution of his duties as trustee; and also from and against all other costs, charges and expenses that he sustains or incurs in or about or in relation to the affairs thereof, except costs, charges, or expenses that are occasioned by his own wilful neglect or wilful default.
10(8)When the Lieutenant-Governor in Council is satisfied that the reason for appointing a trustee under subsection (1) no longer exists, he may terminate the appointment of the trustee and all property, powers, duties and liabilities vested in or acquired by the trustee are revested or vested in the operator upon such termination, without further action.
10(9)Upon the termination of his appointment under subsection (8) the trustee shall report to the Lieutenant-Governor in Council with respect to the nursing home and the Lieutenant-Governor in Council may make all or any of the trustee’s report public.
10(10)No action shall be taken by the operator of a nursing home for loss of profits during the period of the appointment of a trustee.
10(11)Where the Minister intends to expropriate a nursing home in respect of which a trustee has been appointed under this section, the trustee may, notwithstanding subsection 10(1) of this Act and sections 22 and 37 of the Expropriation Act, continue in possession of the nursing home and to operate the nursing home pending the completion of the expropriation proceeding.
1985, c.4, s.50
Number of accommodations provided
11(1)An operator shall not provide accommodation for more than one hundred and fifty residents in one nursing home, unless the Minister in writing authorizes the accommodation of more than one hundred and fifty residents.
11(2)An operator operating a nursing home where supervisory and personal care only are provided shall not provide accommodation for more than twenty-nine residents in that nursing home.
Change in bed capacity
12An operator shall make no change in the bed capacity of the nursing home, or in the services provided by the nursing home unless the change has received the prior written approval of the Minister.
Duties of operator
13An operator shall
(a) provide to each person approved for admission to a nursing home and to his next of kin or legal representative
(i) a written statement of the services provided by the nursing home, any additional services which will be provided, if needed, and any additional costs associated therewith, and
(ii) a written statement of policies governing the nursing home;
(b) involve a resident or person approved for admission to a nursing home and his next of kin or legal representative in plans regarding his admission or discharge;
(c) ensure that no unauthorized individual or agency is permitted to interview or examine a resident or resident records for the purposes of research or any other purpose without the consent of the operator and the informed consent of the resident or, where the resident is unable to give an informed consent, the informed consent of his next of kin or legal representative;
(d) establish and follow a regular procedure for the hearing of concerns of residents of the nursing home.
Records
14(1)An operator shall keep a complete and up-to-date record for each resident from the time of admission to the time of discharge and such record shall include
(a) the standard admission form required by the regulations;
(b) the admission medical and subsequent medical reports;
(c) a comprehensive care plan;
(d) physician’s, pharmacist’s, nurse practitioner’s and dentist’s notes and orders;
(e) medication and treatment sheets;
(f) nurse’s notes;
(g) activation and rehabilitation program progress reports and attendance records;
(h) special dietary requirements or problems;
(i) discharge sheets showing the date of discharge, the reason for discharge, the condition of the resident at the time of discharge, the address to which the resident has been discharged;
(j) the type and amount of drugs accompanying the resident on discharge;
(k) a recording of all valuables belonging to the resident, if the operator has undertaken to keep them in safe-keeping.
14(2)The records which each operator is required to keep under subsection (1) are confidential documents, and no information contained therein shall be imparted to any person other than for the purpose of care of the resident or for the purpose of carrying out the provisions of this Act and the regulations; but a copy of such information may be made available to any person
(a) on the written request of the resident concerned,
(b) in the event of the incapacity or death of a resident, on the written request of the resident’s next of kin or legal representative,
(c) on the written order of the Minister, or
(d) on the order of a court of competent jurisdiction.
2002, c.23, s.7; 2009, c.12, s.1
Records
15Subject to sections 8, 25 and 26, the operator of a nursing home shall ensure that no part of the record of a resident required to be kept under section 14 is removed from the nursing home, including the record of a discharged or deceased resident, and that the record is retained for a period of ten years following the discharge or death of the resident, after which time the record may be destroyed.
Records
16Where a resident moves to another nursing home or is admitted as a patient of a regional health authority as defined in the Regional Health Authorities Act, a summary of the resident’s record relating to medical diagnosis, treatment, diet and other similar matters shall be sent to that nursing home or regional health authority.
1992, c.52, s.22; 2002, c.1, s.15
Discharge of resident
17(1)Where for any reason an operator intends to discharge a resident from a nursing home, at least fifteen days notice of such intention shall be given to the resident and to his next of kin or legal representative except where the operator believes, on reasonable grounds, that the immediate discharge of the resident to the custody of another person is necessary for the safety of the resident or of other residents or staff.
17(2)Where a resident is to be discharged under subsection (1) and the resident has no next of kin or legal representative, the operator shall give the required notice to the resident and to the Director.
Notification of next of kin or legal representative
18Where a resident of a nursing home suffers an accident of a major nature, undergoes a serious change in his condition or dies, the operator shall notify the next of kin or legal representative as soon as possible.
Notification to Director of major incident or accident
19The operator of a nursing home shall notify the Director as soon as possible of any major incident or accident that affects or may affect the health and safety of the residents or staff.
Preparation and submission of records, accounts and reports to Minister
20Every operator shall prepare and submit to the Minister such accounts, records and reports concerning the operation of the nursing home as are required by the regulations and such additional reports or other documents as the Minister may from time to time require.
Payment of accommodation and services not to exceed amount prescribed
21(1)An operator shall not demand or accept, or cause or permit any person to demand or accept on behalf of the operator, payment for accommodation and services provided in a nursing home in an amount in excess of that prescribed by the regulations.
21(2)The Minister may commence an action in a court of competent jurisdiction to recover from an operator any excess payment referred to in subsection (1) that is accepted by or on behalf of the operator, with costs, and upon such recovery shall pay the amount of the excess payment recovered to the person from whom it was accepted.
Provision of financial assistance
22(1)In this section, “financial assistance” includes
(a) making a direct loan,
(b) guaranteeing the repayment of a loan,
(c) guaranteeing a bond or debenture,
(d) acquiring shares in a corporation, and
(e) making grants and forgivable loans.
22(2)The Minister may, with the approval of the Lieutenant-Governor in Council or in accordance with the regulations, provide financial assistance to aid and encourage the establishment, operation and maintenance of nursing homes in the Province, and such financial assistance shall be in accordance with the terms and conditions specified by the Minister and the terms and conditions specified in the approval of the Lieutenant-Governor in Council.
22(3)The Minister may take such security as he considers appropriate for any financial assistance provided under this section and has authority to enforce the security in accordance with the terms thereof.
22(4)When any amount becomes legally due and payable by virtue of anything done pursuant to subsection (1) or as a result of a call of a guarantee issued thereunder, the amount is a liability of the Province and is payable out of the Consolidated Fund.
Provision of financial assistance
23(1)The Minister may, in accordance with the regulations, provide assistance to persons in need residing in a nursing home licensed under this Act.
23(2)For purposes of this section, “person in need” means a person who is unable to provide for himself.
Restrictions on adding to or altering building or facilities
24Without the prior written approval of the Minister, no person shall add any building or facilities to, or alter any building or facility or part thereof that is used for the purposes of a nursing home licensed under this Act unless the action does not result in any additional continuing operating costs and the capital cost thereof is less than ten thousand dollars.
Inspectors
25(1)The Minister may appoint persons as inspectors for the purposes of this Act and the regulations.
25(2)The Minister shall issue to each inspector a certificate of his appointment and every inspector shall produce his certificate of appointment upon request.
25(3)An inspector may at any reasonable time enter a nursing home to make an inspection to ensure that the provisions of this Act and the regulations are being complied with.
25(3.1)Before or after attempting to enter a nursing home under subsection (3), an inspector may apply for an entry warrant in accordance with the Entry Warrants Act.
25(4)Repealed: 1986, c.6, s.30
25(5)Upon an inspection under this section, the inspector
(a) is entitled to free access to all books of account, documents, bank accounts, vouchers, correspondence and records, including resident, medical and drug records, that are relevant for the purposes of the inspection; and
(b) may, upon giving a receipt therefor, remove any material referred to in paragraph (a) that relates to the purpose of the inspection for the purpose of making a copy thereof, if such copying is carried out with reasonable dispatch and the material in question is promptly thereafter returned to the person being inspected,
and no person shall obstruct the inspector or withhold or destroy, conceal or refuse to furnish any information or thing required by the inspector for the purposes of the inspection.
25(6)Any copy made as provided in subsection (5) and purporting to be certified by an inspector is admissible in evidence in any action, proceeding or prosecution as prima facie proof of the original without proof of the signature or official character of the person appearing to have signed the certificate.
1986, c.6, s.30
Approval of by-laws by Minister
25.1No by-law of a nursing home operated on a non-profit basis that pertains to any matter in relation to which the Lieutenant-Governor in Council is authorized to make regulations under this Act has any effect until it is approved by the Minister.
1991, c.14, s.1
Records to be made available to Minister on request
26Any record required to be kept under this Act or the regulations shall be made available to the Minister on request.
Provisions of Nursing Homes Act to prevail in instances of conflict with another Act
26.1Where, with respect to boards of directors of nursing homes that are operated on a non-profit basis, there is a conflict between the provisions of this Act or the regulations under this Act and the provisions of any other Act of the Legislature, the regulations under such Act or an instrument of incorporation or the by-laws of a nursing home that is operated on a non-profit basis, this Act and the regulations under this Act prevail.
1988, c.69, s.1
Offences and penalties
27(1)A person who violates or fails to comply with any provision of the regulations commits an offence.
27(2)A person who violates or fails to comply with a provision of this Act that is listed in Column I of Schedule A commits an offence.
27(3)For the purposes of Part II of the Provincial Offences Procedure Act, each offence listed in Column I of Schedule A is punishable as an offence of the category listed beside it in Column II of Schedule A.
1990, c.61, s.94
Application of Act
28(1)Subject to subsection (2), this Act applies to all nursing homes in the Province whether established before or after the coming into force of this Act, and any licence issued under the Health Act to a nursing home that is valid and subsisting immediately prior to the coming into force of this Act shall be deemed to be a licence issued under this Act and to be subject to the terms and conditions to which a licence issued under this Act is subject.
28(2)The Minister may, subject to such terms and conditions as he considers appropriate and indefinitely or for such period of time as he considers appropriate, exclude from the application of all or any provision of this Act or the regulations a nursing home which was in existence immediately prior to the coming into force of this Act and which was operating in accordance with the law of the Province at that time.
Regulations
29The Lieutenant-Governor in Council may make regulations
(a) respecting the application for and the issuance and renewal of licences, including the terms and conditions to be satisfied by an applicant prior to the issuance of a licence;
(b) respecting terms and conditions to which licences are subject;
(c) respecting the period of time for which a licence is valid;
(d) respecting the services, care, facilities and amenities that nursing homes shall provide and governing and prescribing the staff requirements and duties of staff in respect of the care and services that shall be provided to residents;
(e) respecting the admission of residents to nursing homes;
(f) respecting the assessment and classification of residents for the purpose of determining the level of care required by residents;
(g) respecting amounts that may be charged residents for accommodation including prescribing maximum amounts that may be charged;
(h) regulating or prohibiting charges by nursing homes in respect of any amenity or facility required to be provided;
(i) respecting the construction, establishment, location, safety, equipment, maintenance and repair of nursing homes and of any additions or alterations thereto and respecting the information, plans and other material that are to be furnished to the Director;
(j) respecting the management and operation of nursing homes;
(j.1) respecting the establishment of boards of directors of nursing homes that are operated on a non-profit basis and the selection and appointment of board members and their terms of office, including the maximum number of years that board members may serve;
(j.2) respecting the size and composition of boards of directors of nursing homes that are operated on a non-profit basis;
(j.3) respecting the criteria on which the eligibility of a person to be a member of a board of directors of a nursing home that is operated on a non-profit basis is to be determined;
(j.4) respecting conflicts of interest pertaining to members of boards of directors of nursing homes that are operated on a non-profit basis, including the circumstances that constitute a conflict of interest, the disclosure of a conflict of interest and the manner in which a conflict of interest is to be dealt with;
(j.5) respecting criteria to be considered in the selection and appointment of members of boards of directors of nursing homes that are operated on a non-profit basis;
(k) respecting the officers, staff and employees of nursing homes and prescribing their duties, responsibilities and qualifications for employment;
(l) requiring the bonding of the chief administrators of nursing homes in such form, on such terms and with such collateral security as are prescribed and providing for the forfeiture of bonds and the disposition of the proceeds;
(m) requiring in-service training programs to be provided staff and employees of nursing homes;
(n) instituting a system for budgeting the annual expenditures of nursing homes;
(o) respecting the form and content of books, records and accounts that shall be kept by nursing homes;
(p) respecting the establishment and maintenance of trust accounts for residents;
(q) requiring the accounts of nursing homes to be audited and respecting such audits;
(r) requiring nursing homes to furnish such information or accounts as may be specified;
(s) respecting the reports and returns that shall be made to the Minister by licensees;
(t) respecting treatment, care, conduct, discipline and discharge of residents of nursing homes;
(u) respecting access to resident, medical or drug records by specified persons for specified purposes;
(v) prescribing duties of inspectors;
(w) exempting designated nursing homes from specified provisions of this Act or the regulations;
(x) respecting forms for the purposes of this Act;
(x.1) defining terms used in this Act and not otherwise defined;
(y) respecting interest to be charged on loans made under section 22;
(z) authorizing the Minister to provide financial assistance under section 22 in prescribed circumstances or for prescribed purposes without the approval of the Lieutenant-Governor in Council;
(aa) prescribing the circumstances in which and the purposes for which the Minister may provide financial assistance under section 22 without the approval of the Lieutenant-Governor in Council;
(bb) respecting the manner of making an application for assistance under section 23;
(cc) respecting the information, material or proof of any fact, including evidence under oath, that is to be furnished before assistance is given under section 23;
(dd) respecting the procedure to be followed in the consideration of all information, material and evidence furnished in connection with an application for assistance under section 23;
(ee) respecting the investigation of applications for assistance under section 23 in order to determine the eligibility of applicants;
(ff) providing for the determination or reassessment of the income of an applicant for or recipient of assistance under section 23 and that of his or her spouse or common-law partner;
(ff.1) prescribing contributions to be made by an applicant for or recipient of assistance under section 23 and his or her spouse or common-law partner before assistance is provided or continued under section 23;
(gg) respecting the amount of assistance to be provided under section 23 having regard to varying degrees of need and the circumstances and conditions pertaining thereto;
(hh) respecting the time and manner in which assistance under section 23 is to be given;
(ii) respecting the circumstances or conditions under which assistance under section 23 may be altered or cancelled;
(ii.1) authorizing the Minister to waive part or all of contributions referred to in paragraph (ff.1) and prescribing the circumstances or conditions under which his or her discretion to waive contributions may be exercised;
(jj) respecting the forms to be used for purposes of section 23;
(kk) respecting the procedure to be followed in appealing a decision of the Minister under section 23;
(ll) respecting safeguards governing the disclosure of information concerning recipients of assistance under section 23.
1988, c.69, s.2; 2009, c.12, s.2
Consequential amendments
30(1)Section 1 of the Health Act, chapter H-2 of the Revised Statutes, 1973, is amended by repealing the definition “nursing home”.
30(2)Section 6 of the said Act is amended
(a) by repealing paragraph (1)(k) thereof;
(b) by repealing subsections (5) and (7) thereof.
Consequential amendments
31An Act to Amend the Health Act, chapter 24 of the Acts of New Brunswick, 1980, is repealed.
Commencement
32This Act or any provision thereof comes into force on a day to be fixed by proclamation.
SCHEDULE A
Column I
Column II
Section
Category of Offence
  3(1)..............
B
  3(2)..............
E
  3(3)..............
C
  5..............
B
  6(2)..............
C
  8..............
E
10(9)..............
C
11(1)..............
F
11(2)..............
F
12..............
F
13(a)(i)..............
B
13(a)(ii)..............
B
13(b)..............
B
13(c)..............
F
13(d)..............
E
14(1)..............
C
14(2)..............
F
15..............
C
17(1)..............
E
17(2)..............
E
18..............
E
19..............
H
20..............
C
21(1)..............
H
24..............
C
25(5)..............
F
27(1)..............
B
1990, c.61, s.94
N.B. Sections 1-10, 25-29, 30(2)(a), 31 and 32 of this Act were proclaimed and came into force June 17, 1982.
N.B. Sections 22 and 23 of this Act were proclaimed and came into force July 14,1983.
N.B. Section 30(2)(b) of this Act was proclaimed and came into force June 7, 1984.
N.B. Sections 11-21, 24 and 30(1) of this Act were proclaimed and came into force December 1, 1985.
N.B. This Act is consolidated to June 19, 2009.