Amana Community Services and Aged Care Quality and Safety Commissioner
[2024] AATA 2984
•14 August 2024
Amana Community Services and Aged Care Quality and Safety Commissioner [2024] AATA 2984 (14 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/8777
Re:Amana Community Services
APPLICANT
AndAged Care Quality and Safety Commissioner
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:14 August 2024
Place:Sydney
The Tribunal is satisfied on the evidence before it that the applicant currently meets the threshold of suitability to provide aged care, as required by paragraph 63D(2)(b) of the Commission Act. The decision under review is set aside and in substitution it is decided that the applicant is approved as a provider of aged care (home care).
...............................[SGD].........................................
Senior Member A Poljak
CATCHWORDS
HEALTH AND AGED CARE – refusal of application for approval as an approved provider of aged care – whether the applicant has experience in providing aged care or other relevant forms of care – whether the Applicant demonstrated understanding of its responsibilities as a provider of home care – whether the Applicant has systems in place to meet its responsibilities as a provider of home care – whether the Applicant has sound financial management – consideration of conduct as, and compliance with responsibilities of being, a NDIS provider – decision under review set aside and substituted.
LEGISLATION
Aged Care Act 1997
Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022
Aged Care Quality and Safety Commission Act 2018
SECONDARY MATERIALS
Accountability Principles 2014
Aged Care Quality and Safety Commission Rules 2018
Aged Care Quality Standards
Records Principles 2014
User Rights Principles 2014
Quality-of-Care Principles 2014
REASONS FOR DECISION
Senior Member A Poljak
14 August 2024
Amana Community Services Pty Ltd, the applicant, applied under section 63B of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the Commission Act) to become an approved provider of aged care. The applicant sought approval to provide home care and flexible care and stated that the purpose of its proposed operations was to “provide aged care and disability services for people from the Arabic and Muslim Community”.
On 24 May 2022, a delegate of the Commissioner decided not to approve the applicant as a provider of home care and flexible care. The applicant sought a reconsideration of this decision. As notice of a reconsideration decision was not given to the applicant within 90 days of the reconsideration request, the decision not to approve the applicant was taken to have been affirmed on 6 September 2022: subsection 74L(4) of the Commission Act (deemed decision).
On 21 October 2022, the applicant applied to the Tribunal for review of the deemed decision and on 2 December 2022, the Tribunal ordered that the matter be remitted to the Commissioner for reconsideration of the deemed decision on or before 16 January 2023, pursuant to subsection 42D(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
On 13 January 2023, the delegate affirmed the deemed decision not to approve the applicant to become a provider of aged care (specifically, home care and flexible care) under paragraph 74L(2) of the Commission Act.
On 31 March 2023, in correspondence sent to the Tribunal and the Commissioner, the applicant withdrew its application insofar as it sought to be approved to provide flexible care. This application has thus proceeded from that point on the basis that the applicant seeks to be approved in respect of the provision of home care only.
Issues and Relevant Legislative Provisions
Section 63D of the Commission Act sets out the minimum requirements for approval to provide aged care.1 Subsection 63D(2) provides as follows:
Approval as provider of aged care
(2) The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:
(a) the person is a corporation; and
(b) the person is suitable to provide aged care; and
(c) none of the key personnel of the person is a disqualified individual.
It is not in dispute that the applicant satisfies the requirements in paragraphs 63D(2)(a) and (c). The sole issue on review is whether the applicant is suitable to provide aged care within the meaning of paragraph 63D(2)(b).
In deciding whether the applicant is suitable to provide aged care within the meaning of paragraph 63D(2)(b), the Tribunal must have regard to the considerations outlined in subsection 63D(3):
Suitability to provide aged care
(3) In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:
(a) the person's experience in providing, at any time, aged care or other relevant forms of care;
(b) the person's demonstrated understanding of the person's responsibilities as a provider of the type of aged care for which approval is sought;
(c) the systems that the person has, or proposes to have, in place to meet the person's responsibilities as a provider of the type of aged care for which approval is sought;
(d) the person's record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;
(e) if, at any time, the person has been a provider of aged care or other relevant forms of care–the person's conduct as such a provider and the person's compliance with:
(i) the person's responsibilities as a provider of that care; and
(ii) the person's obligations arising from the receipt of any payments from the Commonwealth for providing that care;
(f) any other matters specified in the rules.
Subsection 63D(4) permits decision-makers to have regard to the matters contained in subsection 63D(3) in relation to any or all of an applicant’s key personnel. Further, subsection 63D(5) clarifies that subsection 63D(3) is not intended to limit the matters to which the Tribunal may have regard in deciding whether the applicant is suitable to provide aged care.
The standard of suitability that a person must meet to be permitted to provide Commonwealth-funded aged care is a stringent one. This becomes apparent when regard is had to the focus of the legislation, being the protection of aged care consumers and the provision of high-quality care and support.
An approved provider of aged care has the responsibilities in paragraph 54-1(1)(g) of the Aged Care Act 1997 (Cth) (the AC Act) to comply with the provisions of the Code of Conduct that apply to the approved provider. The Code of Conduct appears in Schedule 1 to the Aged Care Quality and Safety Commission Rules 2018 (the ACQSC Rules) and paragraph 54-1(1)(ga) of the AC Act, and provides that an approved provider is to take reasonable steps to ensure that its aged care workers and governing persons also comply with the applicable Code of Conduct provisions. These responsibilities were introduced by Schedule 3 to the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth) (the RC Response Act).
An approved provider of aged care has the responsibility in paragraph 54-1(1)(e) of the AC Act to manage incidents and take reasonable steps to prevent incidents, including by complying with the requirements in the Quality-of-Care Principles 2014 (Quality-of-Care Principles). This responsibility was extended to home care providers by the amendments in Part 1 of Schedule 4 to the RC Response Act. It took effect from 1 December 2022 (item 5 of the table in section 2 of the RC Response Act) and will apply to the applicant should it be granted approval.
The Aged Care Quality Standards (Quality Standards), which are set out in Schedule 2 to the Quality-of-Care Principles (also see section 17 of the Quality-of-Care Principles). Subsections 54-1(1)(a) and (d) of the AC Act make it a responsibility of approved providers to provide such care and services as specified in the Quality-of-Care Principles in respect of the relevant type of aged care, and to comply with the Quality Standards.
The responsibilities of approved providers also draw attention to Part 3 of the User Rights Principles 2014 (User Rights Principles), as well as the Charter of Aged Care Rights, appearing at Schedule 1 to the User Rights Principles. Section 54-1(1)(c) of the AC Act makes it a responsibility of approved providers to provide care and services of a quality consistent with the rights and responsibilities of care recipients specified in the User Rights Principles. Paragraphs 56-2(f), (j), (k) and (l) also make it a responsibility of approved providers of home care to comply with various other requirements in the User Rights Principles.
The responsibility in section 63-1A of the AC Act for approved providers to consider the suitability matters in relation to each of its key personnel in accordance with any requirements are specified in the Accountability Principles 2014 (Accountability Principles). Paragraphs 63-1(1)(g), (ha), (hb), (hc) and (m) of the AC Act make it a responsibility of approved providers to comply with various requirements of those Principles.
Part 6.3 of the AC Act contains an approved provider’s record keeping requirements, including by reference to further requirements in the Records Principles 2014 (Records Principles), with which it is a responsibility of approved providers to comply under paragraph 63-1(1)(a) of the AC Act.
Issues for Consideration
17. The relevant matters in subsection 63D(3) for consideration are the applicant’s:
a.experience in providing aged care or other relevant forms of care (paragraph 63D(3)(a));
b.understanding of responsibilities as a provider of aged care, specifically home care (paragraph 63D(3)(b));
c.systems, or proposed systems, to meet responsibilities as a provider of aged care, specifically home care (paragraph 63D(3)(c)):
d.record of financial management, and the methods used, or proposed to be used, to ensure sound financial management (paragraph 63D(3)(d)); and
e.conduct as, and compliance with responsibilities of being, a National Disability Insurance Scheme (NDIS) provider (paragraph 63D(3)(e)).
Consideration of Suitability
The applicant’s identified key personnel are:
a.Mrs Maryana Nasour (Chief Executive Officer (CEO) and Director;
b.Dr Saadallah Ramadan (Director);
c.Mrs Dalal Khalil (Treasurer);
d.Mrs Fatima Ayoub (Director); and
e. Mr Taleb (Tony) Baddour (Chief Financial Officer (CFO)).
Mrs Nasour has a degree in health, ageing and community services. Prior to her role as a director of the applicant, she served as the commonwealth home support programme (CHSP) sector support and development officer for a decade. In this capacity, Mrs Nasour worked closely with various aged care providers in the St. George area, fostering strong relationships and gaining invaluable insights into the industry. Her role encompassed advocacy, information dissemination, and the organisation of a monthly forum. This forum was instrumental in ensuring that aged care providers remained well-informed about the constantly evolving landscape of aged care reforms. Mrs Nasour's tenure allowed her to engage directly with elderly individuals from culturally and linguistically diverse (CALD) communities, listening to their concerns, challenges, and aspirations. Mrs Nasour’s experience as CEO of the applicant as a broker of aged care and as a NDIS provider is relevant insofar as she has been involved in the provision of care to aged care consumers, at least indirectly. This experience has provided her with valuable insights into the provision of care to aged care consumers and demonstrates her capacity to understand the complexities of coordinating and managing care services, which is a fundamental aspect of being an approved provider of aged care. Mrs Nasour is responsible for the ongoing development and implementation of the applicant’s policies and procedures.
Mr Ramadan is an associate professor in medical imaging. He has no prior experience in providing aged care. It is accepted that Mr Ramadan’s professional background and directorship of the applicant as an aged care broker and NDIS provider will have generated some familiarity with the general context of the provision of care. The company director courses taken by him have generated an understanding of the governance aspects of his role.
Mrs Khalil has worked as a bookkeeper for the last decade. She has no discernible experience in the provision of aged care prior to the registration of the applicant as a company. While bookkeeping is not directly related to aged care provision, it equips her with essential skills relevant to the financial aspects of running an aged care organisation. As treasurer, she plays a crucial role in financial oversight and governance. It is submitted that her responsibilities will adapt to the evolving needs of the applicant and aspects of her role may be subsumed by the CFO.
Mrs Ayoub is a registered nurse and midwife whose employment history centres on midwifery. The roles in which Mrs Ayoub has been engaged in over the last 17 years all appear to be clinical roles that did not involve any additional oversight or management responsibilities. It is accepted that Mrs Ayoub is suitably qualified for the clinical aspects of her role as registered nurse. Insofar as it is proposed that Mrs Ayoub be engaged in coordinating and managing the provision of care and services to well over 100 aged care consumers, the evidence does not demonstrate that she has the necessary experience or qualifications. I do note however that her lengthy experience in clinical care does provide a strong foundation for her transition to a role involving coordination and management. The applicant submits that it is committed to providing Mrs Ayoub with the necessary training and support to excel in her role.
Mr Baddour is a certified practising accountant and appears to have provided accountancy services to the applicant in the past. He does not have any experience in providing aged care or other relevant forms of care. Mr Baddour's experience in providing accountancy services to the applicant indicates his familiarity with the financial operations of the organisation. This experience equips him with the necessary skills to oversee financial matters and ensure compliance with financial responsibilities. Mr Baddour's expertise is directly aligned with his responsibilities as CFO, and his independent oversight enhances the applicant’s financial governance.
I consider that the key personnel, including Mrs Nasour, Dr Ramadan, Mrs Khalil, Mrs Ayoub, and Mr Baddour, bring a diverse range of skills and experiences that are highly relevant to their respective roles with the applicant. I am satisfied that the applicant or its key personnel have sufficient relevant experience in the provision of aged or other forms of care that would enable the applicant to successfully establish and safely and effectively operate as a provider of home care.
In addition to the key personnel discussed above, the applicant has or proposes to engage:
(a)an external certified accountant, Mr Hadee Faqih (FCPA, FIPA, BBA), who will oversee the applicant’s financial affairs, including preparing regular financial statements, and prepare business activity statements (BAS);
(b)an IT consultant, Mr Sam Zebib, to assess the applicant’s technology needs and infrastructure, ensuring it complies with industry regulations. It is anticipated that Mr Zebib will recommend and implement IT solutions that enhance operational efficiency and data security. This includes setting up electronic health records, telehealth systems, and data management platforms;
(c)a registered nurse, Mr Mouhamad Hassan Tanana, who will be involved in care coordination; and
(d)a reputable training company, Etrainu, which the applicant has partnered with, to ensure the continuous training and professional development of their workforce.
The applicant acknowledges the current absence of a dedicated coordinator for aged care services. Presently, the responsibility for this role lies with their managing director, Mrs Nasour, who has completed the National Screening and Assessment Form (NSAF) training as a team leader, equipping her to conduct assessments for level 1 and 2 of home care. Furthermore, the applicant has the benefit of having Mr Tanana, who will be responsible for conducting assessments for level 3 and 4 clients. The applicant contends that it recognises the potential need for more personnel as client numbers grow and will not hesitate to expand its team accordingly.
Since the applicant’s inception on 11 December 2019, it has been actively engaged in providing brokerage services for aged care. The applicant has delivered over 12,480 hours of aged care services to clients under home care packages and CHSP, which demonstrates its capability in delivering care services effectively. The applicant presently offers brokerage services to Advance Diversity Services, Vitality Club, Kogarah Community Services, Enhance Community and Supports, Benevolent Society, 3Bridges and Carer Gateway. While I accept that the applicant has provided services pursuant to brokerage arrangements, it has no experience in providing aged care in its own right. The applicant has not been directly responsible for the delivery of safe and quality services under the Commission Act, Quality of Care Principles and Quality Standards, and there is no statutory requirement for the applicant to have been compliant with, or even aware of, the aged care legislative framework and the responsibilities of approved providers. As such, the fact that the applicant has been actively engaged in providing brokerage services for aged care is not of itself determinative of whether the applicant is suitable to provide home care.
The applicant has been a registered provider of NDIS services since August 2021 and has approximately 24 active participants as of January 2023. The NDIS provision and aged care services are distinct; however, it is important to highlight that the experience gained as a NDIS provider can be highly relevant and beneficial when considering the applicant’s suitability to provide home care services. There are overlapping areas of expertise, including care coordination, staff management, quality assurance, and regulatory compliance. These skills acquired as a NDIS provider can be effectively applied in the aged care context. The applicant underwent a mid-term audit on 11-12 January 2023. The audit report is in evidence and shows that the applicant was recommended for full/continued certification as a NDIS provider. In summary, it was noted that:
Amana Community Services (ACS) is a registered NDIS Provider and has been providing services for approximately 18 months within the community of Western Sydney, NSW. ACS was established by Maryana Nasour (Managing Director and CEO) and Saadallah Ramadan (Managing Director). Both Managing Directors have extensive experience working in the disability sector as well as in management roles. The audit was conducted with the Managing Director and CEO, who also works as a Principal of an Arabic School of 200 students (voluntary role). Maryana demonstrated a high level of compassion for ACS and described ACS' values and visions as providing good, quality services to people living with disability” …
The audit team conducted a process-based audit focusing on significant objectives required by the standard and applicable requirements. The audit methods used were interviews, observation of activities and review of documentation and records. The structure of the audit was in accordance with the audit program and audit plan. This audit was successful in meeting the stated objectives. With consideration to the findings identified, the overall conclusions of the audit are: The Management System is evaluated as entirely effective. The audit findings and supporting evidences are available in this report for further action [Emphasis added].
While the operational aspects of NDIS and aged care may differ, there are overlapping areas of expertise, including care coordination, staff management, quality assurance, and regulatory compliance. These skills acquired as a NDIS provider can be effectively applied in the aged care context. The applicant’s conduct as a provider of NDIS services demonstrates a commitment to delivering services within a regulated healthcare environment and the applicant’s ability to meet its regulatory requirements. The applicant contends that it is fully prepared to extend this rigorous approach to our aged care clients, ensuring that they receive the same level of attention and commitment to compliance with the Code of Conduct and all relevant responsibilities under the Commission Act.
The applicant has compiled a comprehensive Policies and Procedures (P&P) manual, developed with the guidance of external consultant, GGJ Consultants. I accept that the use of a consultant is standard practice in the healthcare industry for applications such as these and that policies are regularly bought ‘off-the-shelf’. The P&P manual encompasses a wide range of topics, including clinical care, quality improvement, and financial management. The applicant’s P&P manual serves as a foundational document guiding the applicant’s practices and outlines the processes, protocols, and quality assurance mechanisms that have been put in place to ensure compliance and the delivery of high-quality care services. The evidence demonstrates that it is regularly updated to align with regulatory changes and ongoing requirements.
Mr Paul Sadler, an independent aged care consultant, has provided a witness statement in these proceedings dated 7 February 2024 and gave evidence orally at hearing. Mr Sadler’s extensive experience is detailed in his written statement and is predominantly focused on management and oversight of aged care providers. In 2021, Mr Sadler was engaged by the applicant to assist them to prepare their application to become an approved provider. He recommended the applicant adopt the policy and procedure manual offered by GGJ Consultants and assisted the applicant to customise the P&P manual to their organisation. Mr Sadler gave evidence about the use of GCJ policy manuals by other providers. In February 2024, Mr Sadler joined the applicant’s Board to further assist in its understanding of the aged care environment and its intention to successfully apply for approved provider status. In conclusion, he stated:
I believe the owners of Amana Community Services, Maryana Nasour and Dr Saad Ramadan, have absolutely the right motivation to become an approved home care provider. They are committed to serving their Arabic and Muslim communities.
In the two and a half years since they first applied, their experience with provision of services to older people has only grown stronger as their brokerage business has expanded. They have also during that time adopted new IT systems to manage service delivery and staff training.
Their commitment to meet the requirements of approved provider status is evidenced through their engagement of my consultancy services, their use of the GGJ policy manual and my appointment to the ACS Board. With our support, I believe ACS can operate effectively as an approved provider of home care.
The applicant has provided a number of references in support of its application. They include:
(a)a statement of Zeinab Faraj, rostering officer/HR, dated 25 January 2024;
(b)a statement of Hala Hammoud, client/participant’s daughter, dated 1 February 2024;
(c)a statement of Abir Baddah, client/participant’s daughter-in-law, dated 7 February 2024;
(d)A statement of Rana Kabbout, director of Enhance Supports and Services dated 1 February 2024, which states:
Our organization has had the privilege of engaging with Amana Community Services over the past twelve months, and we attest to the positive impact they have made in the provision of high-quality care. Throughout our collaboration, Amana Community Services has consistently demonstrated a commitment to delivering care that aligns with the Aged Care Quality Standards established by the Australian Aged Care Quality. As a witness to their dedication, we have entrusted them with the brokerage services for two care recipients over the period of collaboration. The feedback from these care recipients has been positive, highlighting the standard of care delivery provided by Amana Community Services.
Amana Community Services has distinguished itself with a diverse, bilingual, and skilled team that embraces a consumer direct care approach. Their focus on the individual needs and goals of care recipients, tailored to their cultural and personal identity, reflects a commitment to delivering care with dignity and respect.
We have observed firsthand their active collaboration with both care recipients and Enhance Supports and Services to address ongoing care changes and planning needs promptly.
This approach empowers care recipients with choice and control over safe supports that align with their health, well-being, and personal preferences. In endorsing Amana Community Services' application, we are confident that, with approval, they will continue to uphold the highest standards of care and make a lasting positive impact on the lives of older Australians.
At hearing, concern was raised in cross examination that aspects of the P&P manual put forward by the applicant contained references to services and aspects that were not applicable such as references to residential care. It is submitted that it is not acceptable for the applicant to have guidance in its manual for its staff that relates to residential care when it does not provide residential care. While it is not ideal, I do not accept that the applicant has provided incorrect information to staff when it would be plainly obvious to them, if it’s referring to residential care, that it would not apply.
Issue was also raised about the formation of a Consumer Advisory Committee. At the time of the original application, there was no requirement to offer a consumer advisory body to the service consumers. After the conclusion of the hearing, the applicant provided an additional document, which is entitled “Consumer Advisory Body: Invitation to Consumers and Representatives”. The document details the formation and purpose of the body as well as frequency of meetings being “at least once every 12 months”. The commissioner makes criticism of the wording in the document, specifically that the:
…requirement is for the approved provider to offer, at least once every 12 months, care recipients and their representatives the opportunity to establish one or more consumer advisory bodies to give the provider feedback. It is not, as the additional document and Policy 8.9.2 suggest, something that the approved provider convenes or that the provider can purport to limit a care recipient’s involvement in or the feedback that is to be provided (described in the document as ‘issues to be considered’).
Such criticism does not give rise to a finding that the applicant fails to understanding its obligations, nor give rise to concerns about the adequacy of the systems it would have in place to ensure compliance, and more broadly its suitability having regard to the matters in subsection 63D(3) of the Commission Act. As already stated, the applicant’s policies were established before this new requirement came into effect and as already stated, the applicant’s policies and procedures are subject to ongoing review and adjustment to align with evolving aged care standards.
Having carefully considered the evidence in totality, I am satisfied that the applicant has adequate systems in place or will have them in place if it is granted approval, to ensure that it will achieve and maintain compliance with the responsibilities of an aged care provider. Relatedly and as a result, I am also satisfied that the applicant has demonstrated an appropriate understanding of a provider’s responsibilities.
Considering financial management, in terms of operating capital, the applicant relies on the cash position of three bank accounts in the name of Mr Ramadan, two of which contained a total of $222,783.93 on 3 June 2022 and the third contained $85,993.20 as of 31 March 2023. The Tribunal has before it a rudimentary profit and loss statement, which appears to show a full year profit of $225,694.32 for an undisclosed year. The applicant has also provided two financial statements prepared by the company that employs Mr Baddour, which indicate a $2,034.58 loss in the 2020 financial year, and a $855.43 profit for the 2021 financial year.
Mr Faqih provided a statement in these proceedings dated 9 February 2024 and gave evidence orally at hearing. In his statement he spoke of the applicant’s financial capability and said, it is “bolstered by its directors’ commitment to invest in the aged home care sector, which was notably strong. Ownership of three residential properties, a healthy stock portfolio and the directors’ stable full-time employment provide a solid foundation for financial stability”. He further said the applicant:
…stands as a testament to good company structure, governance, and solid compliance with Australian laws. Their payroll management, invoicing procedures, BAS statements, and overall commitment to legal requirements underscore their eligibility and suitability to become an approved aged care provider.
At hearing, Mr Faqih confirmed that his opinions were from his perspective as a tax agent and from his understanding of the applicant’s running of the business. He confirmed that his opinion about the applicant’s financial capability was based on the applicant’s income and cash assets, bolstered by the directors’ assets. He stated that as of December 2023, the applicant had $43,000 in cash assets. Mr Faqih said that payments would need to come out for GST and superannuation but at the same time, the company would still be running and generating income.
Decision
The Tribunal is satisfied on the evidence before it that the applicant currently meets the threshold of suitability to provide aged care, as required by paragraph 63D(2)(b) of the Commission Act. The decision under review is set aside and in substitution it is decided that the applicant is approved as a provider of aged care (home care).
40. I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.............................[SGD]...........................................
Associate
Dated: 14 August 2024
Date of hearing: 2 April 2024 Applicant: Self-represented Solicitor for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
4
0
0