O'Loughlins on air: Recent Episodes
O'Loughlins Lawyers
The team explores current legal issues in health, aged care and retirement living. You can find show notes for each episode and other resources at oloughlinsonair.com.au.
O'Loughlins Lawyers is a legal firm based in South Australia. The information provided in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The exposure draft of the much-anticipated new Aged Care Act was released on 14 December 2023. The new Act will replace the current Aged Care Act 1997 (Cth) and the Aged Care Quality and Safety Commission Act 2018 (Cth).
At more than 320 pages in length, it’s a hefty read. While we are still working through the finer details, in this episode we discuss our preliminary thoughts and observations about some of the issues in the exposure draft.
You can find other information and resources at www.oloughlins.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we are discussing the recent report published by the Australian Government on the third Home Care Packages Program Assurance Review.
This assurance review looked at pricing transparency on My Aged Care. Through the review, a number of common issues were identified with home care pricing schedules.
A transcript of this episode can be found at:
https://www.oloughlinsonair.com.au/blog/home-care-pricing-schedules-issues-found-in-the-australian-government-s-assurance-review
O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The question of what items can and cannot be included in a Home Care Package is a common one.
Although it has been out of scope for the three Home Care Packages Program Assurance Reviews published to date, it has consistently been identified as an additional out of scope issue. This has prompted the publication by the Department of updated guidance material in the Program Manual and FAQ document.
Given the ongoing confusion over this issue, we thought it would be useful to discuss the law and guidance material.
You can find other information and resources at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we discuss room moves in residential aged care and the rules that apply.
It is an issue that occurs in many different circumstances, such as where a resident wishes to change rooms, where a resident no longer needs a room in memory support or where a resident has increased needs that require an alternative room.
A common misconception is that the maximum permissible interest rate (or 'MPIR' as it is often called) can never change for a resident. However, a room move is one situation where the MPIR might change, depending on the circumstances.
You can find other information and resources at www.oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In our work with aged care providers and retirement village operators, we are often asked to review a variety of commercial contracts, such as contractor agreements to provide services, labour hire type arrangements to provide staff and software licence agreements.
There are a few issues that we come across often, so in this episode we run through some contract basics that are relevant to many kinds of commercial contracts, as well as issues of particular relevance to aged care providers and retirement village operators.
You can find other information and resources at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we discuss the new model for representatives proposed in the Australian Government's first consultation paper on the new Aged Care Act.
As providers would be familiar with, the current Aged Care Act has a range of concepts for representatives.
The consultation paper outlines a proposal to use the term nominee in the new Aged Care Act and to create two categories of nominees: a supporter and a representative.
There are many problematic aspects to the proposed nominee arrangements, which we discuss in this episode.
You can find other information and resources at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information on this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we discuss voluntary assisted dying laws in the context of retirement villages in South Australia. The Voluntary Assisted Dying Act 2021 (SA) came into operation in South Australia on 31 January 2023.
While on first glance it may appear that the new voluntary assisted dying laws are not relevant to retirement villages, there are legal obligations and practical issues that operators should consider.
For more information, please to our Briefing which also discusses the new laws in the context of the aged care and disability sectors.
You can find other information and resources at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
There are a number of new aged care governance requirements that came into force on 1 December 2022, but with a delayed application of 12 months for existing providers.
That means existing providers need to be ready to comply by 1 December 2023.
The requirements relate to:
· Membership of governing bodies;
· Advisory bodies;
· Wholly owned subsidiaries;
· Key personnel suitability and staff skills and qualifications;
· Giving of information and reports.
Some of these new requirements may have significant practical implications – such as requiring the recruitment of new board members or advisory body members, requiring an amendment to the provider’s constitution or requiring policies and procedures to be put in place.
These practical implications relate mainly to the requirements for membership of governing bodies, advisory bodies, and key personnel and staff suitability – these are the areas that we discuss in this episode.
You can find other information and resources at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we discuss the issue of a home care provider being unable to make contact with a home care recipient or their representative for an extended period of time.
New guidance on this issue was included in the Commonwealth Department of Health and Aged Care's Home Care Packages Operational Manual for providers published this year - perhaps suggesting that this is not an uncommon problem providers are encountering.
But does this guidance align with the legislation and what steps should providers take?
You can find other information and resources at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
1 July 2023 is a significant date in terms of aged care governance.
Within 4 months of that date, most aged care provider organisations (those whose ‘reporting period’ concludes on 30 June) will be required to give their first statement (compliance statement) as to whether the organisation has complied with all of its legislative responsibilities during the 12 month reporting period. If the compliance statement indicates that the provider has not complied with all of its responsibilities, then it must also identify the details of the failure to comply and actions taken in response.
The compliance statement must be signed by a member of the board, on behalf of all members. Information provided in the compliance statement may be made publicly available. 1 July 2023 also marks the commencement of the 24/7 registered nurse requirement (RN requirement) – and the obligation of providers to give monthly reports on compliance with that requirement. If there has been non-compliance, the provider must state the period of non-compliance and the arrangements made to ensure that the clinical needs of residents were met during that period.
These monthly reports are not ‘signed off’ by the board, but like the compliance statement, the information may be made publicly available.
In this episode, we discuss these new reporting requirements and some of the practical issues that they give rise to, including reputational considerations, materiality thresholds, board procedures for signing off on reports and collective accountability.
You can find other information and resources at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we discuss the obligations of approved providers under the Aged Care Act in relation to suitability of key personnel.
As we approach the 12 month anniversary of the commencement of the new ‘suitability matters’ regime, we thought it would be useful to revisit these requirements – given the obligation of providers to consider the suitability matters for each of their key personnel at least once in that 12 month period.
The amendments that commenced on 1 December 2022 did not change the definition of who is ‘key personnel’. What they did was bring in a new list of ‘suitability matters’ that providers must consider in determining whether key personnel are ‘suitable’.
The provider's obligation is to consider the suitability matters in respect of each individual who is key personnel and to be reasonably satisfied that the person is suitable to be involved in the provision of aged care.
There is not set process for assessing suitability, and the assessment has some subjective elements. Our key personnel compliance package recommends using a combination of publicly available searches, and a statutory declaration from the individual, to obtain information about the suitability matters.
The provider then needs to consider each suitability matter and form a view as to each of them, as well as an overall view of suitability. This process needs to be documented - including the dates on which the process took place, the outcome of consideration of each suitability matter and the reasons for that outcome.
Our key personnel compliance package includes guidance material explaining the requirements relating to key personnel under the aged care legislation, and also under the NDIS and ACNC legislation.
It also includes a set of guidelines for undertaking key personnel checks, and templates such as a statutory declaration for key personnel to provide, an annual update letter and a template for recording the outcome of suitability assessments.
If you are interested in finding out more about the document package, please contact our office for more information.
You can find other information and resources at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, we discuss additional care and services in residential aged care. The Aged Care Quality and Safety Commission has recently published a Regulatory Bulletin on Additional Fees in Residential Aged Care. This Regulatory Bulletin addresses various issues approved providers should consider when providing additional care and services in the residential care setting.
The Department of Health and Aged Care has also published guidance in its document ‘Care and Services in Aged Care Homes – Information for Approved Providers’, which gives examples of care and services that approved providers either can or cannot charge an additional fee for providing.
You can find other information and resources at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at the new NDIS restrictive practices authorisation scheme that has commenced in South Australia.
This scheme is relevant to any NDIS providers, including dual NDIS and aged care providers, that operate in South Australia and use one or more restrictive practices for an NDIS participant.
We talk about steps that NDIS providers can take to implement the scheme and issues that may arise.
For more information, see our Briefing at https://www.oloughlins.com.au/wp-content/uploads/newsletters/HARL/Briefing%20-%20SA%20NDIS%20restrictive%20practices%20authorisation%20scheme.pdf
You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at issues that home care providers should start to consider now, pending the release of the changes to the Quality of Care Principles and the commencement of the incident management and Serious Incident Response Scheme requirements for home care. These changes are part of the Aged Care Royal Commission Response No. 2 Bill that the federal government intends to pass as part of its response to the Royal Commission into Aged Care Quality and Safety. For more information, see our Briefing at https://www.oloughlins.com.au/legal-updates/health-aged-care-retirement-law/sirs-in-home-care-is-coming-soon You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
In this episode, the team looks at upcoming changes to the requirements for key personnel of approved providers in aged care. We talk about the suitability test that is due to replace the disqualified individual test. These changes are part of the Aged Care Royal Commission Response No. 2 Bill that the federal government intends to pass as part of its response to the Royal Commission into Aged Care Quality and Safety. For more information, see our Briefing at https://www.oloughlins.com.au/legal-updates/health-aged-care-retirement-law/new-suitability-test-for-key-personnel-of-aged-care-providers You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at requests for health records and visitor records in residential care by family members in disputed estates in South Australia. We focus on: · who has the capacity to speak on behalf of the estate; · access to health records; · access to visitor records being maintained by a residential care provider to comply with Covid-19 emergency directions and risks involved in providing those; and · if requested documents are going to be provided, can a provider ask for cost reimbursement for the time and administrative resources used to provide them. You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at the Report of the South Australian Retirement Villages Act review which was released in November 2021. You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at informed consent to the use of restrictive practices in residential care, who can give informed consent in South Australia and when that consent can be given without having to go to the South Australian Civil and Administrative Tribunal (SACAT). You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O’Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at the Serious Incident Response Scheme or 'SIRS' in residential aged care and, specifically, the category of 'neglect' as a reportable incident. You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au. O'Loughlins is a legal firm based in South Australia. The information in this podcast is for general information only and not to be relied on as legal or other advice. Please consult with your legal advisor for advice about your particular circumstances.
The team looks at when a resident fall will be reportable to the Aged Care Quality and Safety Commission under the Serious Incident Response Scheme or 'SIRS'. You can find show notes with the key points of this episode, as well as other information and resources, at oloughlinsonair.com.au