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Emergency Leave Entitlements for Aged Care Residents – Update

On 15 May 2020, the Commonwealth Government made some changes to the laws governing aged care residents’ leave subsidies. These changes have been publicised as a means of protecting residents’ entitlements and preventing aged care providers from charging certain fees. But what do the new laws actually say?

In a previous article we set out the key facts and what they mean for aged care providers. But the pandemic situation and associated restrictions are changing quickly, particularly in Victoria. So today we update that article to address the complicated question of whether a resident is entitled to take emergency leave from a home if the home is in COVID-19 lockdown.

 

Quick Summary

  • The new laws create a new “emergency leave” for aged care residents.
  • Aged care providers will be entitled to a subsidy for all residents who are away from the aged care home on “emergency leave.”
  • As with social leave, residents will still be required to pay their basic daily fees and any means tested care fee and daily accommodation payment obligations whilst on emergency leave.
  • Aged care providers will not be allowed to charge such residents a fee to reserve their place.
  • Aged care providers may have to reimburse some reserve fees charged after 1 April 2020.
  • The new laws apply from 1 April 2020 to 30 September 2020 for all residential care services in Australia.
  • Residents with symptomatic COVID-19 cannot be released from the aged care home and hence cannot take emergency leave. This is due to the risk of community transmission.
  • Law and government advice are unclear about whether an asymptomatic resident is entitled to take emergency leave from a home if the home is in COVID-19 lockdown. Where such residents do leave the home, isolation and other restrictions apply.

 

Resources

Department of Health Emergency Leave Fact Sheet

 

Which Laws Were Changed?

The government used the Aged Care Legislation Amendment (Emergency Leave) Act 2020 (Cth) to make changes to the Aged Care Act 1997 (Cth) and the Aged Care (Transitional Provisions) Act 1997 (Cth).

The amendments to the Aged Care Transitional Provisions Act replicate those in the Aged Care Act, so we will only talk about the Aged Care Act in this article.

 

Why Have the Laws Been Changed?

The government pays a subsidy to approved aged care providers for every day that they provide care to a resident inside the aged care home. The government also pays a subsidy for some of the days that residents are away from the home on “social” leave.

Until recently, the government would subsidise 52 days of social leave for a resident of an aged care home. This meant that if the resident took a 53rd day of leave, the provider would receive no subsidy. In such cases, the provider would often pass the cost onto the resident. The government decided that this would unfairly penalise those residents who wanted to move out of their aged care home for a long period during the COVID-19 pandemic. There was also a concern that some residents would remain in a home even though they didn’t want to, because they couldn’t afford to pay for leave. This is why the government changed the law.

 

What the New Laws Say: New Emergency Leave Subsidies

There are rules about when the government will subsidise a residents’ leave and when they won’t. These rules are set out in section 42-2 of the Aged Care Act 1997 (Cth). Until recently, this section effectively said that the government would subsidise:

  • an unlimited number of days leave for residents who are away from the home receiving treatment in hospital
  • 52 days leave for residents who are away from the home for non-hospital (“social”) reasons.

The new laws make it so that the government will now subsidise:

  • an unlimited number of days leave for residents who are away from the home receiving treatment in hospital
  • 52 days leave for residents who are away from the home for non-hospital reasons
  • an unlimited number of days leave for residents who are away from the home for non-hospital (“social”) reasons during a situation of emergency.

 

What is a “situation of emergency?”

According to the new laws, a situation of emergency may include a disaster (whether natural or otherwise), an epidemic or a pandemic. The situation of emergency exists when the Minister makes a written declaration. The Minister can declare an emergency for a single aged care home, or a nationwide emergency for every home in Australia.

 

Has a “situation of emergency” been declared?

As mentioned, a situation of emergency does not officially exist until the Minister makes a written declaration. A situation of emergency was declared on 3 June 2020. It says: “There is a situation of emergency for all days in the period beginning on 1 April 2020 and ending on 30 September 2020 for all residential care services in Australia.”

 

What the New Laws Say: New Limits on Charging Fees for Reserving a Place

If a resident is away from the home but not on leave, providers sometimes charge them a fee to “reserve their place.” As providers often only receive subsidies when residents are in the home or on leave, this is a way to compensate them for preserving a resident’s place during a period when they are receiving no government support.

There are rules about when and how much a provider can charge a resident to reserve their place. These rules are set out in section 52C-5 of the Aged Care Act 1997 (Cth). This section effectively used to say that a provider can only charge the reserving fee to someone who:

  • is absent from the home and
  • has already used up their 52 days, so can’t be considered to be “on leave.”

Under the new laws, this section says that a provider can only charge the reserving fee to someone who:

  • is absent from the home and
  • is not on leave.

The effect of this seems to be that providers can’t charge a reserving fee to someone who is away from the home on emergency leave, even if that person has used up their 52 days.

 

Plans to Back Date the New Emergency Leave Entitlements

In his press release, the Minister said that “Eligibility for emergency leave will be backdated to 1 April this year, so people impacted by the current COVID-19 crisis are not disadvantaged.” The repercussions of this are not clear and could be complicated for aged care providers who may have to reimburse some fees.

In its May 16 Protecting Older Australians Newsletter, the Department of Health advised that:

 

“For the current COVID-19 emergency the Determination will be backdated to 1 April this year. As a result permanent aged care residents who have taken leave from their aged care home during the COVID-19 emergency will be able to access the new leave type retrospectively from 1 April 2020.

Social leave balances will be restored to their 1 April 2020 level and any additional charges paid by residents for exceeding their social leave limit will need to be reimbursed by their provider.”

 

Can a Resident Take Emergency Leave from their Aged Care Home if the Home is COVID-19 Lockdown?

Another way of putting this question is: if there is a suspected or active case of COVID-19 in a residential care home, is a resident of that home allowed to leave?

When it comes to residents with symptomatic COVID-19, the answer is clearly “No”. The Department of Health’s Emergency Leave Fact Sheet says that “Residents with symptomatic COVID-19 will not be released from the aged care facility.” This is due to the risk of community transmission.

When it comes to asymptomatic residents, the answer is not clear. On the one hand, the Department of Health’s Fact Sheet explicitly says that a decision can be made “to relocate a client from residential aged care where there is an active case of COVID-19” provided certain conditions are met.

But on the other hand, several aged care providers have reported to ACE that they were told verbally by State and Commonwealth health department staff that, due to the risk of community transmission, residents are not allowed to leave the home during an outbreak, whether they are symptomatic or asymptomatic.

This is a fast-moving situation, so some uncertainty is inevitable. Aged care providers should rely on whichever advice is most recent and most tailored to their particular situation. Providers should ensure this advice is consistent with Commonwealth and State outbreak advice and directions (including PHU advice).

 

Conclusion: What Does this Mean for Aged Care Providers?

From 1 April 2020 to 30 September 2020:

  • aged care providers will be entitled to the “emergency leave” subsidy – ie, entitled to a subsidy for any residents who are on leave from the home during the emergency period, even if they are on leave longer than 52 days
  • aged care providers will not be permitted to charge a reserving fee to anyone who is away from the home on “emergency leave”
  • aged care providers may have to reimburse any reserve fees charged after 1 April 2020
  • residents with symptomatic COVID-19 must not leave the home
  • aged care providers should rely on whichever advice is most recent and most tailored to their particular situation regarding whether asymptomatic residents can leave the home during an outbreak. Providers should ensure this advice is consistent with Commonwealth and State outbreak advice and directions (including PHU advice).
Mark Bryan
ABOUT THE AUTHOR | Mark Bryan
Mark is a Legal Research Consultant at CompliSpace and the editor for ACE. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

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