Today’s correspondent
…would like to know if NSW Ambulance would be able to recover fees if staff at a Residential Aged Care Facility (RACF) chose to engage services from NSW Ambulance rather than provide nursing serviced that are required by the Quality of Care Principles 2014 (Cth) (made under the Aged Care Act 1997 (Cth) s 96.1) rather than provide those services themselves. Who would be responsible for the ambulance fee? Considering that most care recipients would hold a Commonwealth Seniors Health Card (or equivalent) and that under Health Services Act 1997 the holder would be exempt of fees from NSW Ambulance.
Example:
Mrs Smith lives in a Residential Aged Care Facility (RACF) and is found to have a problem with urinary catheter. She also holds a Commonwealth Seniors Health Card. The Registered Nurse (RN) calls an ambulance as it is the weekend and he is not trained in catheter replacement. NSW Ambulance attend and take Mrs Smith to the local Emergency Department.
Question:
Who would be responsible for the fees associated with Mrs Smith care? Considering Mrs Smith is exempted under the Health Services Act 1997 and the RACF has a duty to provide care services under Aged Care Act 1997. Would NSW Ambulance have claim to bill the RACF for these services?
Ambulance fees
The power to charge ambulance fees is found in the Health Services Act 1997 (NSW) ss 67K-67ZD. Section 67K says:
(1) The Health Secretary may charge a fee for ambulance services provided by or on behalf of the Health Secretary.
(2) An ambulance fee may be charged to any person liable for payment of the ambulance fee.
Section 67M says who is liable for the payment of the fee. Relevantly it says, at sub-section (1), ‘A person is liable for payment of an ambulance fee for ambulance services provided to the person.’
Section 67N and the Health Services Regulation 2018 (NSW) r 28 provide that the holder of any of the following concession cards is exempt from the obligation to pay a fee. The concession cards are:
(a) a Health Care Card issued on behalf of the Commonwealth of Australia,
(b) a Pensioner Concession Card issued on behalf of the Commonwealth of Australia,
(c) a Commonwealth Seniors Health Card issued on behalf of the Commonwealth of Australia,
(d) a DVA Health Card – For All Conditions (also known as a Gold Card) issued by the Commonwealth Department of Veterans’ Affairs (but not in relation to non-emergency ambulance services and transfers that are not funded by the Department of Veterans’ Affairs),
(e) a DVA Health Card – For Specific Conditions (also known as a White Card) issued by the Commonwealth Department of Veterans’ Affairs (but only in relation to a specific condition that is funded by the Department of Veterans’ Affairs).
In any NSW Act the term ‘person’ includes ‘an individual, a corporation and a body corporate or politic’ (Interpretation Act 1987 (NSW) s 21).
Who is receiving the service?
If ‘A person is liable for payment of an ambulance fee for ambulance services provided to the person’ we could rephrase the question to ask ‘who is receiving the services? Is it Mrs Smith who is being transported, or is it the RACF that is receiving a service from both the ambulance service and the public hospital to meet its statutory obligations?’
The provider of residential aged care is required to provide the services listed in the Quality of Care Principles 2014 (Cth) and ‘to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met’ (Aged Care Act 1997 (Cth) s 54(1)(a) and (b)). Cl 7 of the Quality of Care Principles says that ‘an approved provider of a residential care service must … provide the care or service specified…’ in various tables of Schedule 1.
Schedule 1 deals with ‘Care and services for residential care services’. Part 3.8 deals with nursing services and says that a provider must provide nursing services to any recipient who needs them. Nursing services include:
Initial assessment and care planning carried out by a nurse practitioner or registered nurse, and ongoing management and evaluation carried out by a nurse practitioner, registered nurse or enrolled nurse acting within their scope of practice.
Nursing services carried out by a nurse practitioner, registered nurse or enrolled nurse, or other professional appropriate to the service (for example, medical practitioner, stoma therapist, speech pathologist, physiotherapist or qualified practitioner from a palliative care team), acting within their scope of practice.
Services may include, but are not limited to, the following: …
(c) establishing and reviewing a catheter care program, including the insertion, removal and replacement of catheters; …
If Mrs Smith has a urinary catheter, then the RACF needs to provide the service of ‘removal and replacement’ of the catheter and have ‘an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met’. What is adequate is of course debatable. Notwithstanding that there have been RACFs for many years, the obligation to have a nurse on duty 24 hours a day will only come into existence on 1 July 2023 and there are provisions for RACFs to apply for an exemption from that requirement (see Aged Care Amendment (Implementing Care Reform) Act 2022 (Cth); Melinda Hayter, Emily Doak and Victor Petrovic ‘Fears registered nurse shortage will lead to substandard care at regional aged care homes’ ABC News (Online) 22 February 2023; ‘Draft details of RN exemption process released’ Australian Aging Agenda, 28 February 2023). An RACF may well argue that they have an ‘adequate’ number of staff even if, at the very moment that Mrs Smith needs her catheter changed, none of those staff are on duty.
Discussion
I think it could be argued that the recipient of the services provided by the ambulance service and the public hospital is the RACF, not the patient. The patient is entitled to look to the RACF for the provision of nursing services. The RACF can meet that obligation by employing relevant staff or by contracting out those services. If an nurse is working at the RACF but is employed by a nursing agency, the patient would not be expected to pay the nurses wages. The RACF pays the nurse, the provide the services the RACF is required to pay. If there is no nurse and the RACF calls for an ambulance to take the resident to hospital for a hospital employed nurse to change the patient’s catheter, then it is arguable the RACF is simply ‘contracting out’ its obligations. Why should the RACF not pay for that in the same way they would pay for an agency nurse to come to the facility.
That would be ‘novel’ in that traditionally ambulance services see that the services they provide are provided to the individual who is receiving care; but that does not mean the argument could not be made. If the service is indeed being provided to the RACF then the argument would be that they are liable for the payment of the ambulance fee.
No doubt, the RACF would oppose that interpretation or would argue given that the patient is exempt then there is no fee to pass onto them. All interesting legal arguments.
Conclusion
The question was ‘Would NSW Ambulance have claim to bill the RACF for these services?’ There is no clear answer but it certainly looks arguable. No doubt it would be opposed as it would shake up the RACF industry so it might be something that would end up before a tribunal or court. But, having read both the Health Services Act 1997 (NSW), the Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) I can see the argument.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
In this example, the RACF is obviously misusing the ambulance service and local hospital ED for care service the RACF is meant to provide; but what is the charging criteria for a private person, that misuses the ambulance service to get transported to hospital for planned treatment, rather than a genuine emergency?
If a person receives ambulance services then they are liable for the fees save that people with the listed concession cards are exempt from those fees. There is nothing in the Act about fees for ‘misusing’ the ambulance service – if you receive an ambulance service you are liable, unless you are exempt.
There is an interesting shift in perspective that I’ve observed over time. My experience as a General Duties officer in NSW Ambulance in the 1980s was we would do one or two ‘cas calls’ a shift; but the rest was non-emergency patient transport. We would also triage casualty cases, and call the paramedics if required – saving them for jobs where they were required but treating and transporting those who needed to go to hospital but did not need that advanced care. Today everyone is a paramedic and non-emergency patient transport has been moved out of many ambulance services so ambulance services have come to mean ’emergency ambulance services’ but it was not always the case and even today I’m sure paramedics reading this blog acknowledge that not all of their jobs are emergencies, but people still need transport by ambulance.
But even so, if a person has planned treatment but cannot travel by car or public transport – they don’t have a car, they have mobility issues, there is no public transport, they have continence or behavioural or simply comfort issues – then is is a misuse of the ambulance service to get transported to hospital? There are non-emergency patient transport services but depending on how they are funded and paid for they may not be available or may not be in their area. If the legislation exempts certain card holders from fees, and their doctor completes the necessary certification to say they need ambulance transport even though it’s not an emergency but it will improve patient comfort, safety or dignity, is that a misuse of the ambulance service?