Amendments to the Aged Care Act were passed by both Houses of Parliament on 14 May 2020 that introduce new emergency leave provisions for aged care residents.

The provisions introduce a new type of leave for residents who wish to take leave from their aged care home during the pandemic or in other “situations of emergency”. It is intended to cover examples provided such as floods, bushfire emergencies or future instances of isolated or regional outbreaks of COVID-19.

The Aged Care Act currently provides that permanent residents are entitled to be away from their aged care residence for up to 52 days a year for non-hospital related reasons on social leave. If the resident takes more than 52 days social leave the provider ceases receiving a subsidy payment but is entitled to charge a fee to the resident for effectively holding the place for the resident.

If a resident wanted to take leave from the home during the pandemic it is likely they would use more than their 52 days social leave. This new type of leave is open to residents to use in a “situation of emergency”, such as the pandemic, rather than having to utilise their social leave.

The changes will apply retrospectively from 1 April 2020.

When the bill attains Royal Assent it will amend the Aged Care Act and the amendments will commence. This has not occurred but is likely to occur very soon.

Important note for providers in Queensland and South Australia

Once enacted the concept of allowing people to take leave from their aged care home during the pandemic (which the new Bill is drafted to support) would appear to be inconsistent with the provisions in the current South Australia and Queensland state directions that provide restrictions on residents leaving the facility whilst those directions are in force.

The current directions can be relevantly summarised as follows:

  • QLD: the operator must not permit a resident (excluding an end of life resident) to leave the facility except to access health care or in an emergency
  • SA: a resident who leaves the facility is prohibited from re-entering unless they left:
    • for medical or dental treatment
    • to attend a funeral of an immediate family member; or
    • inadvertently due to cognitive impairment; or
    • they have no safe alternative accommodation.

The directions are of course changing regularly and may be updated to address the apparent inconsistency.  As they currently stand however providers in these states must comply with these directions.

We will continue to update our blog with critical changes for providers as they occur.

For further information, please contact our national Health, Aged Care and Retirement Living team.