Coronavirus is at the forefront of most peoples’ minds at the moment. It needs no introduction.
The workforce is of course critical to the ongoing care and support of older persons in aged care and retirement living. But what happens if and when staff – particularly those who do not have hands on roles with residents and care recipients – go into self-isolation? How can staff who are not on the operational frontline remain productive away from their desks and work colleagues?
There are obvious quality, safety and care priorities to focus on at this time.
But here is our list of other things for organisations to focus on, or at least not leave on the backburner, in order to use this time to its fullest potential.
Retirement Villages law reforms
The WA State Government is consulting on possible reforms to the retirement villages in stages, over a period of 18 months.
Consultation began with the release of a consultation paper (“CRIS 1”) in August 2019. This was followed by the release of the second consultation paper (“CRIS 2”). The period for public comment has now closed for both papers (CRIS 2 closed 13 March 2020). Nevertheless, future consultation papers will build on the first two papers; and if relevant in the later stages, comments can still refer back to issues arising in the earlier papers.
We recommend that the retirement village industry familiarise themselves with CRIS 1 and CRIS 2, and monitor the release of further papers.
In summary:
CRIS 1 focused on:
- improving consumers’ understanding of the retirement village product;
- how the product is advertised and promoted; and
- how the pricing structure is understood.
CRIS 2 considered operator obligations to retirement village communities that arise both during residence and on departure. It covered matters such as:
- timeline for payment of exit entitlements;
- resident approval of operating budgets, reserve funds and capital works;
- refurbishment obligations;
- the definition of an ‘administering body’, and
- new operator and resident conduct obligations.
Remaining consultation papers are expected to cover:
- The scope of the Retirement Villages Act and its application in contexts such as short-term residents, residents’ relatives and partners, and aged care facilities on retirement village land.
- The regulation of multi-site villages, the memorial requirements of the Act, statutory charge provisions and the process for terminating a retirement village scheme.
- Issues that arise with staged retirement village developments and redevelopments.
- Compliance and enforcement power under the Act, and the State Administrative Tribunal’s jurisdiction.
All retirement village owners and administering bodies in WA should have a view on the issues being raised in this consultation. The issues are numerous and warrant considered responses from the sector. Any present ‘downtime’ can be put to good use in preparation for the next round of consultation.
Changes to home care pricing
The Aged Care Legislation Amendment (Improved Home Care Payment Administration No. 1) Bill 2020 (“Bill”) was introduced to Parliament on 27 Feb 2020.
Once passed, the Bill will change the way in which home care subsidies are paid to approved providers: Subsidies will go from being paid in advance (as is currently the case) to being paid in arrears.
According to the Explanatory Memorandum for the Bill, the current pool of unspent home care funds is around $750 million, with an average of $7,000 unspent funds per care recipient. The Bill is the Government’s response to this issue.
The Bill gives effect to the first stage of reforms announced by the Government in the 2019‑20 Federal Budget, which aim to improve the administration of payment arrangements for home care packages. Further legislation implementing the second stage of reforms will be introduced at a later date. A third stage will then follow.
At the time of writing, the Bill has progressed as far as the House of Representatives.
Although it has been announced (on 27 March 2020) that implementation will be placed on hold due to the current situation with coronavirus (COVID-19), the changes are still coming; and providers should be prepared.
Modern Slavery Policy
The Modern Slavery Act 2018 (Cth) established Australia’s national modern slavery reporting requirement. Under the reporting requirement, certain large entities must publish annual Modern Slavery Statements.
Some aged care and retirement living providers might not expect the Modern Slavery Act to have any application to them. Reporting entities for the purposes of the Act are, however, those with annual consolidated revenue of at least AU$100 million, with no exemption for not-for-profit entities. Persons from larger organisations should therefore read on.
A Modern Slavery Statement describing the risks of modern slavery in the operations and supply chains of reporting entities, and actions taken to address those risks.
There are mandatory criteria which must be addressed in the Statement:
- identify the reporting entity
- describe the reporting entity’s structure, operations and supply chains
- describe the risks of modern slavery practices in the operations and supply chains of the reporting entity and any entities it owns or controls
- describe the actions taken by the reporting entity and any entities it owns or controls to assess and address these risks, including due diligence and remediation processes
- describe how the reporting entity assesses the effectiveness of these actions
- describe the process of consultation with any entities the reporting entity owns or controls (a joint statement must also describe consultation with the entity giving the statement)
- any other relevant information.
The extent to which an organisation is able to meaningfully address these criteria will depend on how exactly it is responding to the issue of modern slavery. This will vary business to business.
The reporting obligation is an annual one, with the Modern Slavery Statements Register to be ‘made available for public inspection, without charge, on the internet’ (MSA s 18).
There is no penalty for failing to lodge a statement or for lodging an incomplete statement, but the public nature of the register will allow for the naming and shaming of organisations that do not comply.
If the Minister believes an organisation has failed to comply, they can write to the organisation to request an explanation for the failure and/or ask that remedial action be taken. If the request is not complied with, the Minister can publish details about the organisation (MSA s 16A).
So, the main legal risk of failing to comply (adequately or at all) would be in the nature of reputational damage and public criticism.
Reporting entities that work to a 30 June end of financial year are required to submit their Modern Slavery Statements by no later than 31 December 2020.
Employees
Employment and workplace issues deserve their own special focus. We recommend reading this update from Panetta McGrath: An employer’s timely response to COVID-19 and employment law changes to mitigate COVID-19 impacts on business.
Keep an eye out on future updates from our Employment and Workplace Relations team here.
Whistleblower policy
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 came into effect on 1 July 2019, amending the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth).
The amendments introduced stronger protections for whistleblowers including in the areas of anonymity, immunity from prosecution, protection against victimisation, and greater access to compensation for whistleblowers. Under the whistleblower laws (as amended) protected disclosures may relate to criminal matters, tax laws, corporations laws, and also conduct that indicates systemic issues (even if not illegal).
The amended Corporations Act whistleblower protections introduced a requirement for public companies and large proprietary companies to implement a compliant whistleblower policy from 1 January 2020. A whistleblower policy must set out certain prescribed content, including:
- the protections available to whistleblowers;
- how an eligible whistleblower may make a protected disclosure, and to whom;
- how the company will protect and support whistleblowers;
- how the company will investigate protected disclosures;
- availability and distribution of the policy.
The whistleblower policy must be made available to employees and officers.
If your organisation missed the 1 January 2020 deadline, or met the deadline in a superficial way, now is an opportune time to address this. Ensure you have a whistleblower policy, ensure it complies with the Corporations Act. Consider internal workplace training, as required. Consider any relevant internal procedures that may need to be updated or could be functioning better alongside the whilstleblower policy (for example any grievance or complaint procedures). Even if your organisation does not require a formal whistleblower policy under the Corporations Act, you may still benefit from a whistleblower policy as part of a broader governance, quality and compliance framework.
Panetta McGrath’s update on the new whistleblower laws, including a clear one-page infographic, is available here.
Existing contracts – frustration or force majeure?
Take stock of your existing contractual arrangements (whether your organisation is the supplier or the purchaser). Has performance been affected in any way, or is performance at risk of being affected?
Whether a contract is terminable, or able to be delayed or suspended due to the effects of COVID-19 will depend on a combination of contractual terms and common law. This can be a complicated area and is the subject of a separate dedicated article, here. Read about force majeure and frustration of contracts during the COVID-19 period, here.
Don’t limit the review to coronavirus-related issues.
Review standard contracts
Review any standard contracts used by your organisation, in light of challenges encountered due to COVID-19. Standard contracts that will benefit from a review could include:
- Resident and client agreements
- Service agreements
- Brokerage agreements
- Purchase agreements
Consider, for example: Has there been any tension between the terms of your agreements, and Government guidelines and mandates regarding social distancing and prohibition of mass gatherings (etc)? What flexibility you might want in the event of future incidents and disruptions? Did force majeure or frustration come into play?
Also take the opportunity to review your contracts more generally, as there is rarely a convenient time to undertake this important ‘housekeeping’ task. Are there aspects which have not been fulfilling operational needs as effectively as desired? Have parts become outdated due to changes in the law? If your organisation is a significant purchaser of goods and services, review your standard purchasing terms and conditions, if any (or introduce some, if you do not currently have any).
Property issues: Are you a landlord or a lessee? A strata owner or manager?
For organisations who either occupy space as a lessee (perhaps office space, or home care shopfronts) or lease premises to residents outside of the usual aged care/retirement living setting (for example, as community housing under the residential tenancies legislation) there are a whole extra set of challenges currently being faced.
In late March and early April 2020, it was announced that the National Cabinet had agreed to:
- a moratorium on evictions over the next six months for commercial and residential tenancies in financial distress who are unable to meet their commitments due to the impact of coronavirus; and
- a mandatory code of conduct with governing principles for commercial tenancies.
The WA Government has since announced that urgent legislation will be introduced into State Parliament to implement a range of measures to minimise financial impacts of the COVID-19 pandemic on tenants and landlords of both commercial and residential tenancies.
Read our Property Update: Leasing in WA During COVID-19, here.
Our clients and contacts may also either own strata-titled property, or manage strata-titled property – for example in a retirement village.
Amendments to the Strata Titles Act 1985 (WA) will take effect on 1 May 2020.
We have previously released an update on strata reforms and community titles, click here.
A further Panetta McGrath update on the 1 May 2020 changes will follow, on our blog.
Organisational response to COVID-19
It would be remiss not to mention COVID-19 itself.
Aged care providers, in addition to managing the obvious health and safety issues for residents, clients and staff, must also be aware that the Aged Care Quality and Safety Commission is closely monitoring responses against the Aged Care Quality Standards. In visits to residential facilities, we are aware of assessors specifically asking for details of what action has been taken to assess and minimise infection-related risks to aged care consumers in the event of a COVID-19 outbreak.
Restrictive practices in the context of COVID-19 can also present complexities under the aged care legislation. We have taken the view that providers’ duty of care to residents and staff, together with overall public safety considerations, can justify restriction on movement in and out of facilities – notwithstanding the Aged Care Quality Standards and the Quality of Care Principles.
However, any precautions and restraints implemented must be reasonable and proportionate. And communication with residents and their families is critical.
As organisational responses will vary case to case, this is an area where specific legal advice is warranted.
Panetta McGrath is also supporting ACSA as part of a national webinar series on ‘COVID-19: Managing with residential aged care visitor restrictions’. This free webinar for ACSA members is scheduled for Wednesday 22 April 2020. Details can be found here.
Please contact Gemma McGrath or David McMullen if you have any questions in relation to the above. For employment-related queries, please contact Jon Long.
