Lawsuit Special care home owners allege unlicensed facilities ruining their business

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Adam Huras
Telegraph-Journal

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SHEDIAC - The owners of a Grand-Digue special care home say they have been victimized by a lax licensing and inspection system that allows illegal homes to flourish in New Brunswick.

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Adam Huras/Telegraph-Journal

Collette Doucette, co-owner of the Residence Famille Doucette in Grande-Digue, displays some of documents she and her husband Don have amassed as they take legal action alleging the government has allowed unlicensed seniors special care homes to operate in the province.

Don and Collette Doucette, owners of the 45-bed Residence Famille Doucette, launched legal action against the province in 2005 over allegations that private operators have been able to build and expand homes with unlicensed, uninspected wings for residents.

About the same time, an auditor general's report found the province was failing to ensure special care homes were properly inspected and licensed.

Now the Doucettes have received documents, emails and correspondence under the Right to Information Act, revealing problems with the system as far back as 2001.

"What was a dream of mine to own and operate my own seniors home has almost ruined us," Collette Docette said in an interview. "Because we didn't want to break the law, we almost lost everything."

The Doucettes allege the province has turned a blind eye to the existence of illegal, unlicensed homes, a problem they say amounts to "New Brunswick's Watergate."

A statement of defence filed by the province denies the department failed to take steps to enforce the legislation and regulations as they apply to unlicensed facilities.

"The defendant denies its actions were negligent and further denies the alleged resulting damages," the province states in its defence.

After nine years of working as a nurse's aide, Doucette decided to begin her own business, operating a special care home in 1994 after successfully obtaining a licence from the province to care for five residents.

After one year, the licence was expanded to eight seniors.

In April 1997, the province launched a new long-term care initiative.

Changes to the Family Services Act required all operators who cared for senior citizens to have their facilities licensed as adult residences. As well, any individual, whether paying privately or subsidized by government, had to be assessed by the province prior to entering the facility.

The system was put in place to ensure residents in special care homes met long-term care criteria, as well as to indicate the appropriate level of care required.

It also entrenched staff-to-resident ratios and subsidies for special care homes for every resident housed.

A moratorium on the creation of new facilities was also put in place so that private-care homes in the province's eight regions would not be put out of business by a flooding of the market. Licences to add beds and expand facilities would not be granted unless a region's vacancy rate was less than 20 per cent.

"I was very excited about it," Collette said. "Homes would now be complementing each other and not competing for residents and putting each other out of business."

Enticed by the province's plans, the Doucettes applied to increase their facility to 45 beds before the expansion freeze went into place. Their plans were approved and the facility opened in 1998, licensed under the new regulation.

By 2000, the facility was running at near capacity. In 2001, the Doucettes wanted to add an additional 30 private rooms but were denied because of the moratorium.

"I seemed to be OK with the fact that the department was in control of the beds and waited patiently for when this opportunity would be open," Collette said. "I didn't know that was actually the start of a nightmare. It's been a never-ending fight ever since."

The Doucettes allege that facilities in the Moncton area, 35 kilometres away, and throughout the province began expansions within the same time frame without the licensed approval of the province. Entire wings and additional floors were created, while the Doucettes say they played by the rules and were unable to expand their operation.

Complaints to the department, provincial and federal officials, and literally dozens of others contacted by the Doucettes provided the same answers: The department is responsible for inspecting and approving community placement facilities.

"The department, everyone, was telling me what I wanted to hear," Collette said. "They always admitted there was a discrepancy in the system, that they were looking into it, but yet nothing ever happened."

In the meantime, the Doucette business was failing. The new Family Services Act required checks into each new senior resident and they were taking months to complete.

While the Doucette home continued to have the checks completed, many families needed homes for elderly relatives immediately.

The Doucettes say homes with unlicensed beds that didn't bother with the provincial checks were admitting people within days. Her home couldn't compete.

"We were near ruin," Collette said, adding their vacancy rate was growing month to month as other homes poached new clients.

"We had no new clients because even though several seniors preferred our facility, they needed a place immediately."

The Doucettes came close to selling their dream in 2004 as they teetered on the brink of bankruptcy.

It was a response from Ombudsman Bernard Richard and then a series of encouraging reports that prompted the two to continue.

"The department freely admits that there are certain deficiencies in the system for monitoring special care homes operating without ministerial approval," wrote Richard after completing his own inquiries.

"The department is currently evaluating various possible actions to determine which would be the most appropriate for solving this problem. What those actions will be and when they will be implemented are questions that we unfortunately cannot answer for you."

The Doucettes filed a notice of action in the Court of Queen's Bench in Moncton in June 2005. They filed the Right to Information requests around the same time.

In January, 2006, Auditor General Mike Ferguson released a report criticizing the government for failing to ensure all special care homes pass inspections before being issued a licence.

"The department has, probably, the resources that it needs to do the inspections, it simply needs to rearrange how some of those resources are used to make sure all the inspections are being covered off in an appropriate time," Ferguson said.

Among the Right to Information documents, a letter of advice to the then-minister of family and community services, Joan MacAlpine-Stiles, prepared by office staff in December 2001, declares that non-licensed operators "are aware that they are operating in contravention of the standards and legislation regarding special care homes but are of the opinion that no action will likely be taken against them in the foreseeable future.

"We currently have two such situations which could result in legal action against the operators."

The province subsequently added a new category to cover the unlicensed beds, calling them "distinctive care" which came with stipulations that unlicensed facilities do not provide "personal care" by nurse's aides, Doucette said.

The Doucettes hired a private investigation company in 2007.

The investigator found several special care homes still operating in contravention of standards.

"It's still happening," Collette said. "And it's happening around the province. It's not just affecting me and my business, it's affecting others I'm sure."

The lawsuit is still in the discovery phase.

"We were ready to go to court yesterday with this," Collette said. "There's a huge double standard here."

The Doucettes said they are seeking financial compensation for the cost of any empty bed at Residence Famille Doucette from the date when unlicensed homes began to appear.

That has been averaged to $30,000 per month. The Doucettes' special care come currently has 23 empty beds for senior residents.

"They took that business away from me," Doucette said. "The government was responsible to ensure there would be no unlicensed facilities."