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8 legal issues for home care providers in the world of COVID-19

Anita Courtney, Dr Melanie Tan, Solomon Miller and Libby Pallot

To date, much of the focus within the aged care industry in relation to COVID-19 has been directed at residential care – the government directives exclusively so. However the home care sector is also facing unprecedented challenges arising from the COVID-19 crisis.

For example, last week the media reported a home care worker who had returned to work without disclosing recent overseas travel delivered home care packages and potentially put vulnerable clients at risk. The converse situation could also occur, whereby a client does not disclose COVID-19 exposure or infection to their home care provider putting the provider’s staff and other clients at risk.

Under the Aged Care Act approved home care providers are required to continue delivering agreed services to their clients, despite the current challenges. The security of tenure provisions under the User Rights Principles generally prevent a home care provider from ending an agreement on the basis of these types of challenges.

Set out below are some issues that home care providers should consider in managing their legal risks. 

1. Government communications

All home care providers should stay on top of Alerts issued by regulatory authorities, including the Aged Care Quality and Safety Commission (ACQSC) and Department of Health, as well as State/Territory departments/offices.

We know from previous experience that the ACQSC expects providers to be aware of, and on top of, any advice it issues. Providers must therefore remain alert and act quickly - and when in doubt, seek advice in these unprecedented circumstances.

2. Care planning – essential services

In consultation with their clients, providers should review clients’ care plans to assess what services are essential. You should discuss the option of mitigating clients’ risk of exposure by reducing or substituting less critical services, or reviewing the ways they are delivered (e.g. care planning can be carried out over the phone).

It will also be important to manage clients’ expectations. For example, there may be unanticipated disruptions to service delivery, and providers will not be able to guarantee the same personnel to deliver services.

3. Self-managing clients and provision of services by family

If consumers are self-managing, you should assess whether they are still able to this in the current environment.

For example, does the client have a plan in the event their usual service provider fails to show up? Should you provide additional care management hours, and if so does your client agreement allow you to charge additional fees for this?

It’s also important to consider your obligations in assisting the client to manage their services in this environment. For example, do they understand the importance of proper infection control? You may wish to develop an additional self-assessment tool to assist clients with this.

There are also a range of issues that may need to be considered if family members are providing services. For example, how can you know if a family member becomes unwell? What contingency plan is there in the event the family member becomes unable to provide the service because they need to self-isolate? These issues will need to be discussed and contingency plans put in place.

4. Workplace health and safety/occupational health and safety

Clients play a critical role in the management of workplace safety in the home care environment so they will be a key aspect of risk management.

To manage risks to staff, it is essential that home care providers ask clients to immediately notify them if they, or someone in their household is diagnosed or suspected to have COVID-19, or has been in close contact with a confirmed case. For the time being, it is also important that recent travel (or contact with recent travellers) is disclosed as well.

You will need to assess how to manage risks to staff safety when they are entering an uncontrolled environment, being the client’s home. Provide your clients with information regarding proper cleaning processes. Ask them to ensure their home is as clean as possible to minimise the risks to staff (e.g. wiping down surfaces and handles). For clients who are not physically able to do this, consider whether their package could accommodate additional cleaning hours.

PPE should also be provided to staff where possible, such as disposable gloves to wear when entering a client’s home, and masks if available. Staff and clients should be reminded to maintain at least 1.5m distance between each other – again, to the extent possible.

Staff that have specific vulnerabilities may require special support.

Finally, ensure infection control protocols are implemented. Consider if additional training of staff is required, and if so provide this online is possible.

5. Review your staffing arrangements

Consider your staffing arrangements. If assessed the ACQSC will wish to see whether you have sufficient staff to provide services to your clients. What strategies do you have in the event staff numbers diminish, or if a particular staff member needs to self-isolate?

We suggest you implement strict requirements around staff disclosures of potential exposure to the virus. In addition, in order to reduce the risk of inadvertent transmission, or at the very least facilitate contact tracing, you may wish to ensure that the same staff member provides services to a particular client (to the extent possible).

You may wish to consider policies requiring compulsory vaccinations for staff. Questions such as whether providers would need to pay for these, and what action can be taken if staff refuse a vaccination would need to be considered.

6. Brokerage arrangements and contracts

It is important to communicate with your brokered service providers to assess how they are managing the risks, and ensure they are doing so appropriately. Under the Quality Standards, the home care provider is responsible for the standards of care provided by third parties so you have a responsibility to review and assess their approach. For example, are they screening and excluding staff? Do they require staff to have flu vaccines?

You should also consider potential liability. If services are brokered, is the allocation of responsibility / liability clear in the Agreement with the service provider? It may be prudent to review your insurance policy, as well as that of your service providers to assess when the insurer needs to be notified, what the policy covers, and what is excluded. 

Due to likely staff shortages that may result from COVID-19, you will also need to consider continuity issues. For example, you should review your contracts to assess:

  1. What is the term of the contract? Is it up for renewal and renegotiation in the near future? If the contractor does not wish to continue with the contract, how will this impact your ability to deliver services?
  2. Is the contractor obliged to deliver services? Will the contractor be able to terminate the contract anyway? Has the contractor given a commitment to keep supplying regardless of circumstances?Are there any exceptions?
  3. Is the contractor incentivised to provide services? For example, if workers do not turn up, what is the financial impact on the service provider? Are you permitted to deduct an amount in addition to not paying them for that service?
  4. Can a contractor trigger a price review, and if so when? Brokered service providers might seek to significantly increase prices in the present environment - does your contract impose any restrictions on this?

You should also contact your contractors to assess whether they have a business continuity plan, and if so, whether that plan is realistic.

Another issue you should discuss with your service providers is how they will prioritise delivery in the event they service multiple approved providers. If the service providers themselves are approved providers, they will likely prioritise their own clients first.

7. Fees and cash flow

You should assess the impact of any service changes on the fees you charge as well as your cash flow. Will you charge a different fee for services delivered remotely? If so, this will need to be agreed with the client if it hasn’t been contemplated in the client agreement.

Most providers review their service fees on a financial year cycle. If you are doing this, remember not to overlook your notice obligations to clients.

Also note that you have until 30 June 2020 to bring all clients onto your standardised pricing schedule. That may be more difficult than it ordinarily would so we recommend you start doing this right away if you haven’t already.

8. Privacy and Data 

The importance of positively identifying COVID-19 infection raises challenging privacy issues. A person’s COVID-19 status is health information, and therefore sensitive information under the Privacy Act.

Providers should ask themselves if they can mandate staff to disclose test results? What can you do with those test results? If a staff member tests positive, can you inform the clients to whom they provide (or have provided) services, as well as any related contractor?

If it becomes known that a client has tested positive, or is at risk of testing positive, providers should inform relevant staff members and contractors if the client consents. If a client does not consent, then public health obligations may trump privacy obligations and urgent advice should be sought.

How we can help

If you require any further information regarding COVID-19 please contact Anita Courtney, Dr. Melanie TanSolomon Miller or Libby Pallot or our expert Aged Care team.

If you would like to stay up to date with Alerts, Insights and upcoming events, you can subscribe to our aged care mailing list here.

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