Statutes of Newfoundland 1992 Chapter H-1.1

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Statutes of Newfoundland 1992

CHAPTER H-1 CHAPTER H-1.1

AN ACT RESPECTING THE LICENSING AND
INSPECTION OF HEALTH AND SOCIAL
AGENCIES
(Assented to December 23, 1992)

Analysis

1. Short title

2. Definitions

3. Director

4. Inspectors

5. Powers and duties of director

6. Delegation of power by director

7. Board

8. Board to advise minister

9. Delegation of power by board

10. Need for licence

11. Power to issue licences

12. Agency to be open

13. Inspection of agency

14. Duties of inspectors

15. Prohibited practices

16. Revocation of licence

17. Appeal to board

18. Hearing

19. Appeal

20. Effect of appeal

21. Regulations

22. Offence and penalty

23. RSN 1990 cW-6 Rep.

24. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

1. This Act may be cited as the Health and Social Agencies Act.

Definitions

2. In this Act

(a) "board" means the Health and Social Agencies Board established by section 7;

(b) "client" means a person who is a recipient of services from a health and social agency and includes a person who is residing in a health and social agency and is receiving personal or supervisory care;

(d) "department" means the Department of Health;

(e) "disability" means the chronic inability to cope in 1 or more aspects of physical, mental, emotional, or social functions, resulting in a need for personal or supervisory care in a health and social agency;

(f) "director" means the director appointed under section 3;

(g) "health and social agency" means

(i) a residential facility, as defined in the regulations, where food, lodging and supervisory or nursing care are supplied with or without charge, and which is located in a building, part of a building, group of buildings or other place or accommodation and includes

(A) a nursing home where care is provided to persons who are disabled to a degree that they must have skilled 24-hour nursing, and continuous medical supervision, but do not require all the facilities of an acute care hospital,

(B) a residential facility for 4 or more people, or, at the discretion of the director, less than 4 persons, who require some supervisory care as defined in the regulations, or

(ii) a service prescribed by regulation, conducted or operated by a person or agency, and which is used in whole or in part to maximize a person's functional independence;

(h) "inspector" means an inspector appointed for the purposes of this Act and includes the director;

(i) "licence" means a licence issued under this Act;

(j) "licensee" means a person who is the holder of a valid licence under this Act; and

(k) "minister" means the Minister of Health.

Director

3. (1) There shall be appointed in the manner authorized by law, a person to be a director of the department for the purposes of this Act.

(2) The minister may appoint a person to be acting director in the place of the director in the case of illness or absence of the director or of a vacancy in the office.

Inspectors

4. There shall be employed in the manner authorized by law those persons as officers and inspectors that may be necessary for the purpose of this Act and the regulations.

Powers and duties of director

5. (1) The director, for the purpose of carrying out his or her duties under this Act and the regulations, shall require the submission by the person who owns or operates a health and social agency of the information prescribed by the regulations in connection with a health and social agency, and may require from that person further information in relation to that agency.

(2) The director may suspend a licence to operate a health and social agency and may relocate the residents from a health and social agency where he or she thinks that it is in the best interest of the residents to do so.

(3) It is the duty of the director to ensure compliance with the regulations on an application to the board for a licence or renewal of a licence.

(4) The director, for the purpose of carrying out his or her duties under this Act, and the regulations, may require an inspection of an agency, building or a part of it.

(5) The director shall act as secretary to the board.

Delegation of power by director

6. The director may authorize 1 or more officers or inspectors to perform any of his or her powers or duties upon the conditions or in the circumstances that he or she may determine.

Board

7. (1) There is established the Health and Social Agencies Board to be appointed by the minister, consisting of 7 members, namely, a chairperson, who in the case of a tie shall have a casting vote, 1 representative of the department and those other members that the minister may appoint.

(2) The members of the board shall designate 1 of their members to act as chairperson in the absence of the chairperson.

(3) There shall be a quorum of the board where there are 4 members present at a meeting.

(4) The members of the board shall be appointed for a period of up to 3 years and are eligible for reappointment for a continuous period not exceeding 9 years.

(5) The minister shall fill a vacancy in the membership of the board.

(6) Where the term of office of a member of a board expires before a successor is appointed, the member shall continue to serve on the board until a successor is appointed or that member is reappointed.

(7) All members of the board, other than the members appointed from the public service, may receive the remuneration for services that the Lieutenant-Governor in Council fixes and all members of the board are entitled to be paid for travelling and other expenses necessarily incurred in connection with the business of the board.

Board to advise minister

8. The board shall report to and advise the minister on the application of this Act and the regulations, and on other matters in relation to this Act and the regulations that may be assigned to the board by the minister.

Delegation of power by board

9. The board may authorize the director, in writing, to perform the powers of the board in the circumstances that it may determine.

Need for licence

10. (1) A person shall neither operate, nor hold himself or herself out as operating, a health and social agency unless he or she is the holder of a valid licence issued by the board under this Act.

(2) Notwithstanding subsection (1), a person may operate a day care centre for children or offer homemaker services where that person is licensed under the Day Care and Homemaker Services Act.

Power to issue licences

11. (1) The board shall issue a licence or a conditional licence to a person to conduct and operate a health and social agency where the board is satisfied that

(a) the applicant has met all the requirements set out in this Act, the regulations and in written government policy; and

(b) the applicant

(i) is able to operate the home in a manner that will maintain the spirit, dignity and individuality of the clients,

(ii) is willing to participate in training programs or workshops, that are determined by the board to be advantageous,

(iii) shall provide an atmosphere that is non-restrictive and homelike,

(iv) is aware of local community services and will encourage clients to engage in meaningful social, physical and leisure time activities according to the clients' interests and abilities,

(v) will maintain a working relationship with the professionals who are providing consultation and assistance for a client and with the family of the client, and

(vi) meets other criteria and standards which the board may determine respecting the qualifications of an operator.

(2) The board may reissue a licence to an operator of a health and social agency at the time of renewal where all the requirements of this Act and the regulations have been met.

(3) A licence issued by the board shall be in the form prescribed by the regulations and it shall expire on December 31 of the year for which it is issued.

(4) A licensee shall keep the licence continuously displayed in a conspicuous place on the premises for which it is issued.

Agency to be open

12. A licensed health and social agency shall be open at all times to visitation and inspection by an inspector who may examine every part of the agency and may call for and examine the records of the agency, and may inquire into all matters concerning the health and social agency, its employees and clients.

Inspection of agency

13. (1) Where the director, an inspector or an authorized representative of the board believes on reasonable grounds that a health and social agency is being operated without a licence that person may, with a warrant issued under subsection (2), enter and inspect the premises of the agency and may request from the proprietor of the agency full information regarding the purpose for which it is used.

(2) A Provincial Court judge or justice of the peace, who is satisfied by information upon oath that there are reasonable grounds for believing that there is on any premises anything that will afford evidence with respect to an offence under this Act, may issue a warrant authorizing an inspector named in the warrant to enter and search those premises and to make inquiries and copies of books, documents, correspondence and records that are considered necessary, subject to the conditions that may be specified in the warrant.

(3) The owner or person in charge of the premises referred to in this section and every person found in the premises shall give an inspector all reasonable assistance to enable the inspector to carry out his or her duties and functions under this section and shall furnish the information that the inspector may reasonably require.

Duties of inspectors

14. (1) An inspector shall investigate an application for a licence to conduct and operate a health and social agency and shall report his or her findings to the director.

(2) An inspector shall perform other duties, which are within the scope of his or her employment, as directed to do so by the director or the minister.

Prohibited practices

15. A person who conducts or operates a health and social agency or who is an employee of a health and social agency shall not

(a) bring, cause to be brought, advertise for, or encourage the entry into the province of an adult person from another jurisdiction to become a client of a health and social agency; or

(b) solicit funds by a general or public appeal for the support of a health and social agency without first informing the director in writing.

Revocation of licence

16. The board may revoke a licence granted to a person to conduct and operate a health and social agency where the licensee or an employee of the licensee violates a provision of this Act or the regulations and may refuse to reissue a licence to that person until satisfied that he or she and his or her employees will abide by the provisions of this Act and the regulations.

Appeal to board

17. (1) Where a person is aggrieved by a notice, decision, direction, suspension or order of the director or the board under this Act or the regulations, that person may appeal to the board in writing, within 30 days of that notice, decision, direction or order.

(2) Where the board receives a notice of appeal under subsection (1), it shall hear the appeal.

(3) The person who is appealing to the board may be represented at the hearing by a lawyer.

(4) Where an appeal is to be heard, the board shall fix a time for the hearing which shall not be later than 1 month after receiving the notice of appeal.

(5) The board may, by notice in writing, require the attendance of a person before it at the time and place named in the notice and examine that person under oath regarding a matter which is the subject of an appeal.

(6) The board may, after it has heard the appeal, confirm, revoke or vary the action taken by the director or the decision of the board.

Hearing

18. (1) Where an objection is made to the board about the issue or renewal of a licence or if the board intends to cancel, suspend or not issue or renew a licence, the director shall by notice in writing advise the licensee, the person applying for a licence or the person making an objection, of a hearing to determine the matter and that person may be present at the hearing and may be represented by a lawyer.

(2) The notice shall state the time and place of the hearing and shall be sent to the licensee, person applying for a licence or the person making an objection, by registered mail by the board to the parties last known address at least 7 clear days before the date of the hearing.

(3) Where the board conducts the hearing it shall have all of the powers that are conferred on a commissioner by the Public Inquiries Act.

Appeal

19. (1) An appeal lies to a judge of the Trial Division from a decision of the board after it has heard an appeal under section 17.

(2) An appeal made under subsection (1) shall be made within 30 days of the written notice of the decision of the authority and shall be based on a point of law only.

Effect of appeal

20. An appeal under section 17 or 19 shall not affect the notice, decision, direction or order appealed against and that notice, decision, direction or order shall remain in force pending the outcome of the appeal.

Regulations

21. The minister may make regulations

(a) providing for the issue, reissue, suspension and revocation of, and refusal to grant or reissue licences or conditional licences;

(b) categorizing different types of health and social agencies;

(c) prescribing conditions and standards that an applicant for a licence to operate a health and social agency must comply with to become eligible to obtain a licence and specifying when these conditions and standards may be waived;

(d) prescribing fees for the issue and reissue of a licence;

(e) requiring the bonding of operators of health and social agencies and prescribing the amount and form of the bonds, the types or classes of securities acceptable as collateral security, the period that bonds shall subsist, the conditions upon which bonds may be forfeited and respecting all matters subsequent to forfeiture;

(f) requiring that all health and social agencies have comprehensive general liability insurance;

(g) providing for the appointment and prescribing the duties and functions of inspectors;

(h) prescribing forms necessary to carry out or enforce the regulations;

(i) providing for orders and directions necessary or desirable to enforce this Act or the regulations;

(j) prescribing the conduct, management, appointments and general standards of operation to be required of licensed health and social agencies;

(k) prescribing the keeping of records in health and social agencies and the submission of reports in respect of the agencies to the board or the director;

(l) providing standards for the utilization of beds for respite care in a health and social agency that is a residential facility;

(m) prescribing the maximum number of beds in a health and social agency that is a residential facility;

(n) prescribing designations for levels of care for residents of a health and social agency;

(o) specifying the nature of care and services that may be provided in a health and social agency;

(p) providing for the holding of inquiries into the operation of this Act and into a charge or complaint that an operator of a health and social agency or another person has contravened this Act or the regulations, or has made a false statement in a form, return, report, record, account or statement required under this Act or the regulations, or into another matter arising in the administration of this Act and providing that the person holding the inquiry shall have all of the powers that are conferred upon a commissioner by the Public Inquiries Act, including the power to take evidence under oath;

(q) requiring returns and statements to be made by persons applying for licences or holding licences and other persons, and prescribing the information to be given in those returns and statements;

(r) defining the phrase "care and attention";

(s) prescribing the agencies who will be considered as acceptable to conduct inspections required by this Act on behalf of the department;

(t) prescribing the manner in which inspections are to be carried out;

(u) prescribing residential or non-residential facilities that are not already prescribed under this Act;

(v) prescribing what shall be considered to be a service under this Act;

(w) respecting the procedure to be followed in the hearing of appeals under this Act; and

(x) respecting a matter necessary or advisable to carry out effectively the intent and purpose of this Act.

Offence and penalty

22. (1) A person who contravenes this Act or the regulations or makes a false statement in writing under this Act or the regulations is guilty of an offence and liable, on summary conviction, to a fine of not more than $2,000 for a 1st offence and not more than $5,000 for a subsequent offence.

(2) In addition to imposing a fine, a judge may order a service discontinued or a home closed.

RSN 1990 cW-6 Rep.

23. The Welfare Institutions Act is repealed.

Commencement

24. This Act shall come into force on a day to be proclaimed by the Lieutenant-Governor in Council.

©Earl G. Tucker, Queen's Printer