Julie McStay and Lucinda Smith

COVID-19: Federal and State/Territory Directives – What it means for Aged Care Providers

Julie McStay and Lucinda Smith

March 27, 2020

Aged Care Legislation Updates Retirement Villages

In response to COVID-19 and as part of the rolling restrictions being imposed at a State and Federal level, increased restrictions have been placed on visitors to residential aged care facilities around the country. The purpose of the restrictions is to restrict contact between residents and non-residents to mitigate the risk of residents contracting or coming into contact with COVID-19. Given the nature of COVID-19 and the risk it poses, especially to older Australians, these restrictions are seen as both necessary and reasonable particularly as Australia heads into its influenza season.

With the above in mind, it is important that approved providers and their staff are aware of the practical implications of these restrictions to ensure the health, safety and wellbeing of residents. Importantly, the responsibilities contained in the relevant State and Territory directives (which contain the restrictions) relate to both the facility operators and the people who enter the facility. Accordingly, facility operators must take all reasonable and appropriate steps to ensure compliance.

Complying with State/Territory and Commonwealth directives and legislation

There are some inconsistencies between State/Territory and Commonwealth directives. To the extent that there are inconsistencies between the Commonwealth and State and Territory directives, you need to follow the directives issued by your relevant State or Territory.

Status of the State and territory directives

The Federal government has moved to make directives relating to aged care facilities, with Prime Minister Morrison announcing new measures on 18 March 2020.

Each State and Territory has also formulated aged care specific directives. The directives are mostly uniform in application and are listed below as follows:

  • Victoria – The relevant directive can be found here and expires on 13 April 2020.
  • Australian Capital Territory – The relevant directive can be found here and expires on the day the declared emergency ends.
  • New South Wales – The relevant directive can be found here and expires on 22 June 2020.
  • Queensland – The relevant directive can be found here and expires on 19 May 2020.
  • Northern Territory – The relevant directive can be found here and expires when the public health emergency ends.
  • Western Australia – The relevant directive can be found here and expires when the public health state of emergency ends.
  • South Australia – The relevant directive can be found here and expires when the public health emergency ends.
  • Tasmania – The directive can be found here and expires on 15 April 2020.

Important terms and definitions

When reading the below restrictions it is important to understand a few key terms which are referenced and defined in the directives, including:

  • Care and support visit, means a visit of less than two hours, limited to a maximum of two visitors, for the purposes of providing care and support to the resident.
  • Residential aged care facility, means a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997 of the Commonwealth.
  • End of life resident, means a resident of the facility who is in the end stage of life or receiving palliative care.

Restrictions on visitors to residential aged care facilities

The directives place significant restrictions on the ability to visit residential aged care facility, for the duration of the direction. These restrictions are broad and capture many people who would ordinarily enter a residential aged care facility on a day to day basis. However, there are a number of exemptions to these restrictions, namely if:

  • the person is an employee or contractor of the residential aged care facility; or
  • the person is present at the residential aged care facility for the purpose of providing goods or services that are necessary for the effective operation of the facility on a paid or voluntary basis; or
  • the person is present at the residential aged care facility for the purpose of providing health, medical or pharmaceutical services to residents of the facility (paid or voluntary); or
  • the person is present at the residential aged care facility for a ‘care and support visit’ to a resident of the facility on a particular day and is the only care and support visit made to the resident on that day; or
  • the person is present at the residential aged care facility for the purpose of end of life support for a resident of the facility; or
  • the person is present at the residential aged care facility because it is necessary for emergency management or law enforcement; or
  • the person is present at the residential aged care facility in their capacity as a prospective resident of the facility; or

These exemptions are qualified.  A person entering under the exemptions must not fall into any of the following categories:

  • during the 14 days immediately preceding entry, the person arrived in Australia from a place outside Australia; or
  • during the 14 days immediately preceding the entry, the person had known contact with a person who has a confirmed case of COVID-19; or
  • the person has a temperature equal to or higher than 37.5 degrees or symptoms of acute respiratory infection; or
  • the person does not have an up to date vaccination against influenza, if such a vaccination is available to the person; or
  • the person is aged under 16 years, other than in circumstances where the person’s presence at the facility is for the purposes of end of life support for a resident of the facility.

If a person falls under one of the exemptions outlined in the relevant State and Territory directives but cannot satisfy each of the five requirements above then they must not enter or remain on the premises of a residential aged care facility.

Future increases in restrictions

The Australian government moved to ‘stage 2’ restrictions for social distancing measures on 24 March 2020. These include measures to close non-essential services in Australia and other measures to limit community transmission of COVID-19. These measures have already meant severe limitations on visitations to Aged care facilities throughout the country.

As community transmission increases, the Australian government may move to stage 3 restrictions. The government has not unveiled what might be included in these increased restrictions but analogous circumstances in New Zealand may offer some guidance. In New Zealand the government has moved to ‘stage 4’ restrictions to manage COVID-19. Under the new restrictions the New Zealand government is rationing supplies and requisitioning facilities and is doing a major reprioritisation of healthcare services. Approved providers in Australia should be aware that an escalation to stage 3 in Australia will likely see a drastic reprioritisation of healthcare services which will include prioritising the protection of aged care residents. While we cannot yet predict what measures the Australian Government might put in place, it will likely include the creation of stricter obligations on approved providers with respect to staff and visitors.

Practical considerations – flu vaccinations

Under the State and Territory Directives, approved providers must not allow people into a residential aged care facility where they do not have up-to-date flu vaccinations (if such a vaccination is available to that person). Consistent with these directives, an approved provider must ensure that all people (including staff and contractors) who are on or enter the premises of an aged care facility have current up-to-date flu vaccinations.

Any refusal to comply by staff with a lawful and reasonable direction may, subject to a fair show cause process, be a valid reason for dismissal. Given the seriousness of the risks to safety involved, it may also justify summary dismissal. If any team member refuses or fails to comply and obtain an up-to-date flu vaccinations, we suggest that you contact us for advice before making any decision about their employment.

Any contractor who refuses to comply should not be granted entry.

Approved providers should also be aware that there are some inconsistencies between the Federal and State approach regarding flu vaccinations. A directive published by the Department of Health on 25 March 2020 stated that all aged care workers have to have their flu vaccinations from 1 May 2020. This is a significantly lower standard than the one since applied in State and Territory directives. To the extent that there are inconsistencies, the higher standard should always be followed. To be clear, the current requirement is that an approved provider must ensure that all people (including staff and contractors) who are on or enter the premises of an aged care facility have current up-to-date flu vaccinations.

The State and Territory governments have not elaborated on what is meant by “up-to-date” flu vaccinations. However, the directives broadly caveat this requirement with the requirement that the relevant vaccination be available. The 2020 influenza vaccination is currently available at some outlets, and over the coming weeks will become more broadly available to the community. With this in mind, approved providers should start immediately planning to have all staff and contractors vaccinated with the 2020 vaccination as soon as reasonably possible. Any person receiving the 2020 influenza vaccination should be provided with evidence of the vaccination from the health practitioner that administered it.

The Department of Health has stated that aged care providers are required to take all reasonable steps to ensure that a person does not enter or remain on the premises if they do not meet the influenza vaccination (and other) requirements set out in the relevant state and territory directions. To this end, the Department has recommended aged care providers may need to seek appropriate evidence of their immunisation status from individuals wishing to enter a facility.  Appropriate evidence may be a statement or record from a health practitioner (eg as described above) or an immunisation history statement (available from Medicare online or through the Express Plus Medicare mobile app).

We understand that an immunisation statement is now easily accessible and while this is not yet a compulsory requirement we recommend providers start informing family members and contractors that you will require this evidence of vaccination and how they can obtain it. Approved providers should already have evidence of staff vaccinations.

Update from the Aged Care Quality and Safety Commission

Approved providers should be aware that the Aged Care Quality and Safety Commission has released its regulatory and compliance approach to COVID-19 which can be found here. The Commission will focus on taking a proportionate risk-based approach to the situation and will look at ways in which it can continue to administer its regulatory duties in a safe and responsible manner.

Implementing the restrictions

There are a number of practical tips that we suggest approved providers consider to ensure they are complying with the increased restrictions and directives, including:

  • Approved providers must ensure that staff are made aware of the directives and ensure they receive appropriate notice and (if necessary) training in any new systems and processes developed to comply with the restrictions.
  • Approved providers should undertake a regular review of their infectious disease policies and protocols to ensure they marry up with any changes in process that have been implemented on the ground. This could include doing an audit of Personal Protective Equipment (PPE) stock and educating staff. It is critical for providers to ensure there is a consistent implementation of any change in policy and process across the home/homes. This can only be achieved by education and audit.
  • Providers should be aware that the Federal Government has indicated there are delays on the provision of PPE for aged care providers but that they will prioritise this task. We recommend immediately contacting the Department of Health at agedcarecovidppe@health.gov.au to discuss the logistics of receiving PPE.
  • Approved providers should anticipate that the vaccine for the 2020 influenza will be broadly available in the coming weeks and should immediately consider plans to have all staff and contractors vaccinated as soon as practicably possible. In addition to the general ban listed in the relevant directives, providers should also bar entry to anyone who cannot show up-to-date influenza vaccinations over the coming weeks as the vaccine becomes readily available.
  • Approved providers should ensure that visitors are aware of the restrictions and requirements for entry into the residential aged care facility (eg that they do not have a temperature equal to or higher than 37.5 degrees or symptoms of acute respiratory infection).
  • Approved providers should take reasonable and appropriate steps to assess the physical condition of visitors to the facility (eg temperature and general presentation) where there are any concerns.
  • Approved providers should ensure that appropriate PPE is utilised and that infection control procedures are followed by visitors.

The above is not an exhaustive list of the steps approved providers will need to take to comply with the Directions.

Please keep in mind that that Federal directives and guidelines issued by the Department of Health are changing almost daily as the COVID-19 situation unfolds and approved providers should keep a close eye on any new developments or directives that are issued.

We are here to support approved providers in answering any questions or help with managing these changing obligations.

Since this blog was published, the Department of Health has released a FAQs sheet regarding influenza vaccinations and residential aged care facilities. Information what aged care providers need to know is available here

Contact

If you would like to discuss any aspect of this article and/or would like us to provide advice, please contact a member of Thomson Geer’s Health, Aged Care and Retirement Villages team.