Thinking | 1 April 2020

COVID-19 and the immediate regulatory impact on the health and aged care sector

By Alison Choy Flannigan

COVID-19 has presented a number of regulatory and legal challenges for the Australian health and aged care sector. This article summarises some of the support provided by the Australian Government sector, as well as some of the regulatory restrictions involved in operating a health or aged care facility, including hospitals.

There are daily developments. This article is up to date as at 31 March 2020. We recommend that you check the Government websites for updates.

Government support to the sector

On 11 March 2020, the Australian Government unveiled a comprehensive $2.4 billion health package to protect all Australians, including vulnerable groups such as the elderly, those with chronic conditions and Indigenous communities, from the coronavirus (COVID-19). These included:

  • $100 million will fund a new Medicare service for people in home isolation or quarantine, as a result of coronavirus, to receive health consultations via the phone or video such as FaceTime or Skype.
  • The Government will provide $25 million to fund home medicines services, which will enable patients to have their PBS prescriptions filled online or remotely, and have the medicines delivered to their home.
  • The national triage phone line will therefore be expanded with an additional $50.7 million in funding, operating 24/7 to provide advice to patients.
  • The Government is investing $206.7 million for up to 100 dedicated respiratory clinics.
  • Senior Australians will be protected through a major funding boost of $101.2 million to educate and train aged care workers in infection control.
  • The Government has already announced $500 million in funding for the states and territories for COVID-19.

On 29 March 2020, the Government announced a $1.1 billion package that boosts mental health services, domestic violence support, Medicare assistance for people at home and emergency food relief. This included:

  • To provide continued access to essential primary health services during the coronavirus pandemic, $669 million will be provided to expand Medicare-subsidised telehealth services for all Australians, with extra incentives to GPs and other health practitioners also delivered.
  • An initial $74 million will be provided to support the mental health and wellbeing of all Australians.
  • An additional $200 million will be provided to support charities and other community organisations that provide emergency and food relief as demand surges as a result of coronavirus.

In addition, the Australian Government will invest $30 million for COVID–19 research to enable Australian researchers to contribute to global efforts to control the outbreak. Three research areas, in line with the priorities agreed at the recent Coronavirus Research Roundtable, are vaccine development, anti-viral development and respiratory medicine research.

Further, the Government has announced support to cover the costs of the private hospitals – the details are to be announced.

Government support to businesses generally

The Government has announced financial support to all Australian businesses, including temporary relief for financially distressed businesses. This includes:

  • A temporary increase for statutory demands raised from $2000 to $20,000.
  • Temporary relief for directors from any personal liability while insolvent. Directors will be able to rely on the temporary relief in relation to a debt incurred by the company if:
    • the debt is incurred in the ‘ordinary course of the company’s business’;
    • the debt is incurred during the six-month period (starting on the day the new law commences), or a longer period as prescribed by the regulations; and
    • the debt is incurred before any appointment of an administrator or liquidator of the company during the temporary safe harbour application period.
  • All existing Corporations Act duties will continue to apply, including that of directors to act with care and diligence, in good faith in the best interests of the company and to not improperly use their position or information received for personal gain.
  • Any debts incurred by the company will still be payable by the company and egregious cases of dishonesty, illegal phoenix activity and fraud will still be subject to criminal penalties.
  • Temporary flexibility in relation to the Corporations Act for companies from provisions of the Act to deal with unforeseen events that arise from COVID-19, eg requirement to hold an AGM.
  • Others including ‘boosting cash flow for employers’ between $20,000 and $100,000 for SMEs and not-for-profits with aggregated annual turnover under $50 million that employ workers.
  • Tax deferrals - we will publish an article on this separately.
  • Australian states and territories will put a six-month moratorium on evictions for both residential and commercial tenants during the coronavirus pandemic.
  • The JobKeeper Payment is a subsidy to businesses and will be paid to employers, for up to six months, for each eligible employee that was on their books on 1 March 2020 and is retained or continues to be engaged by that employer. Where a business has stood down employees since 1 March, the payment will help them maintain connection with their employees.
    • Employers will receive a payment of $1500 per fortnight per eligible employee. Every eligible employee must receive at least $1500 per fortnight from this business, before tax.
    • The program will commence 30 March 2020, with the first payments to be received by eligible businesses in the first week of May as monthly arrears from the Australian Taxation Office. Eligible businesses can begin distributing the JobKeeper Payment immediately and will be reimbursed from the first week of May.
    • Eligible employers will be those with annual turnover of less than $1 billion who self-assess that have a reduction in revenue of 30 per cent or more, since 1 March 2020 over a minimum one-month period.
    • Employers with an annual turnover of $1 billion or more would be required to demonstrate a reduction in revenue of 50 per cent or more to be eligible. Businesses subject to the Major Bank Levy will not be eligible.

General restrictions in relation to gatherings

As at 30 March 2020, gatherings are now restricted to a two-person limit on ‘non-essential gatherings’ in public and private, outdoors and indoors except your own household. No more than five people for weddings and 10 people for funerals.

Essential activities include:

  • essential workplaces, where you cannot work from home;
  • health care settings;
  • providing care or assistance to a vulnerable person or to provide emergency or compassionate reasons;
  • pharmacies;
  • food shopping;
  • schools and universities, where you cannot study from home;
  • public transport and airports; and
  • financial institutions.

These essential gatherings must apply social distancing and good hygiene practices, including:

  • being able to maintain a distance of 1.5 metres between people/1 person per 4 square metres; and
  • providing hand hygiene products and suitable rubbish bins, with frequent cleaning and waste disposal.

Everyone should stay home unless you are: shopping for essentials, receiving medical care, exercising or travelling to work or education.

People should stay at home including those aged over 70, aged over 60 with pre-existing conditions, or Indigenous people aged over 50 should stay home wherever possible.

Closures include beauty salons and places of worship. There are restrictions on attendance at funerals and outdoor fitness classes.

It is fluid – please check the Government websites!

Restrictions on access to hospitals

Restrictions on access to hospitals differ slightly from State to State. For example, the Hospital Visitor Directions (VIC) under the Public Health and Wellbeing Act 2008 (Vic) prohibits persons from entering or remaining at a hospital from midnight 23 March 2020 and midnight on 13 April 2020 unless that person is a patient, worker or visitor (as defined in the Direction) or is in an area of the hospital that is marked as exempt.

Workers include contractors.

A Visitor is defined in relation to:

  • A patient under 18 – the patient’s parent or guardian;
  • A patient with a disability – the patient’s carer;
  • A pregnant patient – the patient’s partner or support person;
  • An emergency patient – the patient’s accompanying person;
  • An outpatient – the patient’s accompanying person;
  • A palliative patient – the patient’s end-of-life support;  and
  • A Care and support visit – a visit no longer than two hours by one person or two persons together.

Excluded visitors and workers (who must not attend hospitals) are people who are:

  • diagnosed with COVID-19 and have not yet met the criteria for discharge from isolation;
  • arrived in Australia (in some states from interstate) less than 14 days before visit;
  • the person has a temperature higher than 37.5 degrees or symptoms of acute respiratory infection; and/or
  • the person has been contact with a confirmed case of COVID-19 less than 14 days before visit.

Restrictions on access to aged care facilities

Restrictions on access to aged care facilities differ slightly from State to State. For example, under the Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 dated 24 March 2020 a person must not enter or remain on the premises of a residential aged care facility between 24 March 2020 and midnight on 22 June 2020 unless the person is:

  • an employee or contractor of the facility;
  • a resident or prospective resident;
  • on the premises for a specified purpose (eg providing goods and services, providing health and pharmaceutical services, making a care and support visit (no more than two hours by no more than two people and it is the only visit per day), emergency management or law enforcement, etc); or
  • has a Ministerial exemption.

There are also restrictions on where the meeting with visitors can occur, for example, in private rooms and not communal areas.

Despite the above, the following persons are not allowed to enter or remain on premises – people who have:

  • arrived in Australia (in some States from interstate) less than 14 days before visit;
  • had contact with a confirmed case of COVID-19 less than 14 days before visit;
  • has a temperature of more than 37.5 degrees or symptoms of acute respiratory infection;
  • the person does not have an up-to-date vaccination against influenza, if the vaccination is available to the person; or
  • is under 16 years of age other than providing end-of-life support for the resident of the facility.

Health and aged care workers

Health care workers can still go to work if they have:

  • had casual contact with COVID-19 cases and are well; and
  • directly cared for confirmed cases while using PPE properly.

They should monitor themselves for symptoms and self-isolate if they become unwell.

For aged care workers, these rules also apply:

  • from 1 May, you must have your influenza vaccination to work in or visit an aged care facility, subject to availability; and
  • if you’re a residential aged care worker, you must not go to work if you have a fever or symptoms of a respiratory illness.

Residential aged care services must also ask their staff to provide details of their health status before entering the facility. This helps to protect our most vulnerable community members.

Hospitals – elective surgery

There is a suspension of non-urgent Category 2 and 3 procedures at public and private hospitals effective from 11.59pm on 1 April 2020.

All non-urgent elective surgery will be temporarily suspended in public and private health facilities. Only Category 1 and some exceptional Category 2 surgery will continue until further notice.

Decisions on the category of patients is at the discretion of their treating medical professional:

Category 1 – Needing treatment within 30 days. Has the potential to deteriorate quickly to the point where the patient’s situation may become an emergency.

Category 2 – Needing treatment within 90 days. Their condition causes pain, dysfunction or disability. Unlikely to deteriorate quickly and unlikely to become an emergency.

Category 3 – Needing treatment at some point in the next year. Their condition causes pain, dysfunction or disability. Unlikely to deteriorate quickly.

The State and Territory Governments will urgently finalise arrangements with private hospitals under the COVID-19 National Partnership Agreement by 29 March 2020. This is in progress with NSW private hospitals approached to enter into a collaborative reservation arrangement.

Telehealth and pathology

The Government has expanded the Healthdirect Australia – National Coronavirus Helpline on 1800 020 080. Website: https://www.healthdirect.gov.au/coronavirus

On 29 March 2020, the Hon. Greg Hunt MP, Minister for Health, announced the whole of population telehealth for patients, general practice, primary care and other medical services to support the response to COVID-19.

From 30 March 2020, telehealth (video-conference) and phone consultation items are available to all Australians. This is stage 4 of the COVID-19 response.

The schedule fees for the bulk billing incentive items have been increased, to encourage medical practitioners to provide bulk-billed services to vulnerable patient groups. Bulk-billing incentives items are available for medical services (items 10990, 10991 and 10992), diagnostic imaging services (items 64990 and 64991) and pathology services (74990 and 74991) for patients who are either under 16 years old, or who are a Commonwealth concessional beneficiary.

The new items are available to GPs, medical practitioners, nurse practitioners, participating midwives and allied mental health providers.

The new services must be bulk billed.

Details of the new MBS numbers are available at: http://www.mbsonline.gov.au/internet/mbsonline/publishing.nsf/Content/news-2020-03-29-latest-news-March

Prescriptions

The National Health (COVID-19 Supply of Pharmaceutical Benefits) Special Arrangement 2020 (Cth) (dated 25 March 2020) modifies arrangements for the supply of a pharmaceutical benefit on a paper-based prescription before the presentation of that prescription to the approved pharmacist or approved medical practitioner making the supply.

Under s10(2) an approved pharmacist or approved medical practitioner may supply the pharmaceutical benefit to a person on the first presentation of a prescription if:

  • the approved pharmacist or medical practitioner is provided with a digital image of the prescription, or an image of so much of the prescription as would indicate that subsections 40(1), (2) and (2A) have been complied with by the PBS prescriber; or
  • a PBS prescriber advises the approved pharmacist or approved medical practitioner of the details of the prescription; or
  • a PBS prescriber has given the approved pharmacist or approved medical practitioner a copy of the prescription.

Therapeutic goods

There are a number of exemptions being provided to allow therapeutic goods to be accessed urgently to deal with public health emergencies including the Exemption for coronavirus (COVID-19) medical devices – including face masks.

Employment issues

Some of the employment issues our health and aged care clients have experienced include the following:

Work, health and safety

It is important to identify and manage the work, health and safety risks and reinforce the ‘standard precautions’ for infection control.

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Staff absences

Some staff may refuse to attend work due to the fact that it is a high-risk industry. We recommend that employers consider the circumstances of each case on a case-by-case basis, including:

  • why they feel they are at risk; and
  • if they are immunocompromised or have a family member living in their household who is immunocompromised or elderly; and
  • family commitments if schools are closed.

Given the serious consequences, you should excuse them from attending work, as good health and aged care staff are difficult to find. Can you re-deploy them in another way using telehealth for example?

If they have no particular circumstances to consider, then they can be directed to attend work.

For those unable to attend due to particular circumstances, you may agree to allow them to access annual leave or other paid leave entitlements.

For those who are not authorised to be absent from work, they will be on unpaid leave.

Section 97 of the Fair Work Act sets out that an employee may take paid personal/carer’s leave if it is taken:

‘to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires carer or support because of… an unexpected emergency affecting the member.’

Courts will consider the time the person was notified of the emergency and in some instances will also consider the availability of alternative care arrangements in the circumstances.

Staff shortages

A shortage of staff is also an issue, with staff having to be quarantined if they become sick, even with a cold. There are clinical risks in using agency staff who are unfamiliar with your patients/residents, systems and policies and procedures.

Other employment issues for the health and aged care sector

Other issues include:

  • Stress claims, particularly if staff become overworked due to the clinical demand and patients and staff bully and harass staff;
  • Possible workers’ compensation implications;
  • Home care/respite care is now higher risk and a number of aged care providers have ceased to provide these services;
  • Redeployment considerations; and
  • Stand down if no other alternative
When can you stand down an employee?

In relation to standing down employees, there needs to be a causal link between COVID-19 and the stoppage of work. It cannot be just because there is a downturn or not enough work.

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Compassion, empathy and common sense should be applied to navigate the issues, allowing health and aged care staff and patients/residents to survive these challenging times both physically and mentally.

This may include being inventive, for example using technology to link patients/residents with their families and to allow them to visit through glass windows using mobile phones.

This article is up to date as at 31 March 2020.

Contact

Alison Choy Flannigan

Alison Choy Flannigan

Partner & Leader, Health & Community

Alison specialises in advising clients in the health, aged care, disability, life sciences and community sectors. 

Karl Rozenbergs

Employment lawyer Karl Rozenbergs advises clients in adverse action claims, on negotiating enterprise agreements and much more.

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