Brightwater Care Group Inc and Secretary, Department of Health an D Ageing
[2003] AATA 124
•7 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 124
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W1999/360, 361, 362, 364, 367, 368, 370, 373, 376
GENERAL ADMINISTRATIVE DIVISION ) Re BRIGHTWATER CARE GROUP INC Applicant
And
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberDate7 February 2003
PlacePerth
Decision The decision of the Tribunal on each of the applications for review is as follows:
· W1999/360 (Care recipient 187825)
The reconsideration decision of 7 October 1999, setting aside the “reviewable decision” of 1 June 1999 and substituting a new decision, is set aside and the “reviewable decision” of 1 June 1999 is affirmed.
· W1999/361 (Care recipient 393216)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/362 (Care recipient 362793)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/364 (Care recipient 79403)
The “reviewable decision” of about 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/367 (Care recipient 193889)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/368 (Care recipient 53851)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/370 (Care recipient 114387)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/373 (Care recipient 237212)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/376 (Care recipient 160139)
The “reviewable decision” of 1 June 1999, and the reconsideration decision of 7 October 1999 which confirmed that “reviewable decision”, are set aside and, in substitution therefor, it is decided that the appropriate classification level, in accordance with the Classification Principles, is classification level 5.
….......(sgd S D Hotop)..........................
Deputy President
CATCHWORDS
HEALTH AND COMMUNITY SERVICES – Aged Care – classification of aged care recipients – applicant (an approved provider) reappraised level of care needed by care recipients – respondent renewed classifications of care recipients – respondent subsequently changed classifications of care recipients – applicant requested reconsideration of respondent’s decisions – respondent made decisions on reconsideration – applicant applied to Tribunal for review – whether respondent’s decisions to change classifications of care recipients correct – whether respondent’s decisions to renew classifications of care recipients based on inaccurate or incorrect reappraisals by applicant or otherwise made incorrectly – material to which Tribunal may, and may not, have regard in reviewing reviewable decisions – whether reviewable decisions correct on material to which Tribunal may have regard
Aged Care Act 1997 ss2-1, 25-1, 26-1, 27-1, 28-1, 28-2, 28-3, 29-1, 41-3, 85-1, 85-5, 85-8, 88-1, 88-2, 96-1, Schedule 1
Aged Care Principles – Classification Principles 1997 Parts 4, 5, 9, Schedule 1 Part 1, Schedule 1 Part 2, Schedule 2; Records Principles 1997 s 19.5
Comptroller-General of Customs v Members of Administrative Appeals Tribunal (1994) 123 ALR 140
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Re Uniting Church Homes – Bethavon Hostel and Secretary, Department of Health and Ageing [2002] AATA 479
REASONS FOR DECISION
7 February 2003 Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberIntroduction
1. Brightwater Care Group Inc (“the applicant”) has applied to the Tribunal, pursuant to s 85-8 of the Aged Care Act 1997 (“the Act”), for a review of nine “reviewable decisions” within the meaning of Act (see s 85-1). Each of those “reviewable decisions” was a decision, made on 1 June 1999 under s 29-1 of the Act, to “change the classification of a care recipient” (see s 85-1, item 31) and each “reviewable decision” was subsequently reconsidered by a delegate of the Secretary to the (former) Department of Health and Aged Care (now the Department of Health and Ageing) (“the respondent”) under s 85-5 of the Act. Eight of the “reviewable decisions” were confirmed, and the other “reviewable decision” was set aside and a new decision substituted therefor, by the delegate on 7 October 1999 under s 85-5(5) of the Act.
2. At the hearing the applicant was represented by Mr P van Hattem, solicitor, and the respondent was represented by Mr M Ritter of counsel. The Tribunal had before it the statement and documents (“T documents” – T1-T101) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the following documentary exhibits tendered in evidence by the applicant (A1-A4) and by the respondent (R1-R9):
· Statement of Marlene Bell dated 28 April 2000 with annexures (comprising 3 volumes) (A1);
· “Brightwater Progress Notes” (comprising 43 pages) (A2);
· bundle of A3 size documents commencing with document entitled “Hierarchic Dementia Scale” (comprising 18 pages) (A3);
· Statement of Toni Michelle Aslett dated 21 February 2001 together with annexures (A4);
· Statements of Meeli Kersti Eriksson dated 5 October 2000 (R1);
· Further Statement of Meeli Kersti Eriksson dated 20 April 2001 (R2);
· Statement of Dianne Scott dated 5 October 2000 (R3);
· Statement of Suzanne Raychel Wallington dated 5 October 2000 (R4);
· Statement of Jennifer Susan Hefford dated 4 October 2000 (R5);
· Statement of Iren Margaret Hunyadi dated 5 October 2000 (R6);
· “RCS Review” report of Dr R Rosewarne dated 23 April 2001, together with brief curriculum vitae and summary of professional activities of Dr Rosewarne (R7);
· document entitled “Revisions to Review prepared by Dr Rosewarne” dated 13 December 2001 (R8);
· The Documentation and Accountability Manual issued by the (former) Department of Health and Family Services (R9).
Oral evidence was given by Marlene Bell and Toni Aslett (who were called by the applicant), and by Meeli Eriksson, Dianne Scott, Suzanne Wallington and Richard Rosewarne (who were called by the respondent).
The Legislative Framework
3. Before setting out the factual background and considering the evidence in this matter, it is convenient to outline the relevant legislative framework. That legislative framework is primarily comprised of Part 2.4 of the Act, together with the Classification Principles 1997 (“the Classification Principles”) made by the Minister under s 96-1 of the Act. Part 2.4 (comprising Divisions 24-29) of the Act is headed: “Classification of care recipients”, and the Classification Principles provide for matters that are “necessary or convenient to be provided in order to carry out or give effect to” Part 2.4: see s 96-1(1)(b) of the Act. The Classification Principles are “disallowable instruments” for the purposes of s 46A of the Acts Interpretation Act 1901: see s 96-1(2) of the Act.
The Act
4. Before outlining the relevant provisions of Part 2.4 of the Act reference should be made to the objects of the Act. Section 2-1 of the Act provides:
“(1) The objects of this Act are as follows:
(a) to provide for funding of aged care that takes account of:
(i)the quality of the care; and
(ii)the type of care and level of care provided; and
(iii)the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv)appropriate outcomes for recipients of the care; and
(v)accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;
(c) to protect the health and well-being of the recipients of aged care services;
(d) to ensure that aged care services are targeted towards the people with the greatest needs for those services;
(e) to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;
(f) to provide respite for families, and others, who care for older people;
(g) to encourage diverse, flexible and responsive aged care services that:
(i)are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and
(ii)facilitate the independence of, and choice available to, those recipients and carers;
(h) to help those recipients to enjoy the same rights as all other people in Australia;
(i) to plan effectively for the delivery of aged care services that:
(i)promote the targeting of services to areas of the greatest need and people with the greatest need; and
(ii)avoid duplication of those services; and
(iii)improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;
(j) to promote ageing in place through the linking of care and support services to the places where older people prefer to live.
(2) In construing the objects, due regard must be had to:
(a) the limited resources available to support services and programs under this Act; and
(b) the need to consider equity and merit in accessing those resources.”
The phrase “aged care” is relevantly defined in Schedule 1 to the Act to mean:
“care of one or more of the following types:
(a) residential care;
(b) …
(c) …”.
The word “care” is also defined in Schedule 1 to mean:
“services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.”
The meaning of the phrase “residential care” is given by s 41-3 of the Act as follows:
“(1)Residential care is personal care or nursing care, or both personal care and nursing care, that:
(a) is provided to a person in a residential facility in which the person is also provided with accommodation that includes:
(i)appropriate staffing to meet the nursing and personal care needs of the person; and
(ii)meals and cleaning services; and
(iii)furnishings, furniture and equipment for the provision of that care and accommodation; and
(b) meets any other requirements specified in the Residential Care Subsidy Principles.
(2) However, residential care does not include any of the following:
(a)care provided to a person in the person’s private home;
(b)care provided in a hospital or in a psychiatric facility;
(c)care provided in a facility that primarily provides care to people who are not frail and aged.”
5. The Act provides for, inter alia, the payment of subsidies to “approved providers” for the provision of residential care. A person must be approved as a “care recipient” under Part 2.3 of the Act to receive residential care before an approved provider can be paid “residential care subsidy” pursuant to Part 3.1 of the Act for providing that care: see s 19-1 of the Act. Care recipients approved under Part 2.3 for residential care are classified, pursuant to Part 2.4, according to the level of care they need and such classification affects the amount of residential care subsidy payable to an approved provider for providing that care.
6. Division 25 (ss 25-1–25-5) in Part 2.4 of the Act prescribes the manner in which care recipients are classified. First, an appraisal of the level of care needed by a care recipient, relative to the needs of other care recipients, must be made by the approved provider that is providing care to the care recipient: s 25-3(1). The appraisal must be in a form approved by the Secretary to the Department of Health and Ageing (“the Secretary”), and must be made in accordance with the procedures specified in the Classification Principles: s 25-3(3). Secondly, upon receipt of an appraisal made under s 25-3 in respect of a care recipient who is approved under Part 2.3 for residential care, the Secretary must classify that care recipient according to the level of care the recipient needs, relative to the needs of other care recipients: s 25-1(1). In classifying the care recipient, the Secretary must take into account:
· the appraisal made in respect of the care recipient under s 25-3; and
· any other matters specified in the Classification Principles: s 25-1(3).
Such classification must specify the appropriate classification level (as set out in the Classification Principles) for the care recipient: s 25-1(2). Division 26 of the Act sets out the date of effect of a classification.
7. Division 28 (ss 28-1–28-5) in Part 2.4 of the Act prescribes the manner in which classifications are renewed. An approved provider may reappraise the level of care needed by a care recipient. In that event the reappraisal must:
· be in a form approved by the Secretary (s 28-2(3));
· be made in accordance with the Classification Principles applying to an appraisal under Division 25 (s 28-2(1)); and
· generally be made during the reappraisal period for the classification set out in s 28-3 (s 28-2(4)).
The reappraisal period set out in s 28-3 is generally the period beginning one month before the expiry date of the relevant classification (that is, the day that occurs 12 months after the classification took effect: s 27-1(2)(a)) and ending one month after that expiry date. If, however, the care needs of a care recipient have “changed significantly” during the period during which the classification has effect, the reappraisal may be made at any time during that period: s 28-2(5). The circumstances in which care needs are taken to have “changed significantly”, for the purposes of s 28-2(5), are, pursuant to s 28-2(6), specified in the Classification Principles: see s 9.33 of the Classification Principles. If notified of a reappraisal made under s 28-2 by an approved provider the Secretary may renew the classification: s 28-1(1). In renewing the classification, the Secretary must take into account:
· the reappraisal made under s 28-2; and
· any other matters specified in the Classification Principles: s 28-1(3).
A renewal of a classification must specify the appropriate classification level (as set out in the Classification Principles) for the care recipient: s 28-1(2). Section 28-4 sets out the date of effect of a renewal of a classification.
8. Division 29 (ss 29-1–29-2) in Part 2.4 of the Act prescribes the manner in which classifications are changed. Section 29-1 provides:
“ (1) The Secretary must change a classification if the Secretary is satisfied that:
(a) the classification was based on an incorrect or inaccurate appraisal under section 25-3 or reappraisal under s 28-2; or
(b) the classification was, for any other reason, made incorrectly.
Note: Changes of classifications are reviewable under Part 6.1.
(2) A classification cannot be changed in any other circumstances, except when classifications are renewed under Division 28.
(3) Before changing a classification under subsection (1), the Secretary must review it by examining:
(a) the material on which the classification was based; and
(b) any other material or information of a kind specified in the Classification Principles;
and considering whether the material supports the classification.
(4) If the Secretary changes the classification under subsection (1), the Secretary must give written notice of the change to the approved provider that is providing care to the care recipient.”
9. Part 6.1 of the Act provides for the reconsideration and review of “reviewable decisions” made under the Act. According to the “Dictionary” in Schedule 1 to the Act, “reviewable decision has the meaning given in section 85-1”. Section 85-1 sets out in tabular form an exhaustive list of the decisions made under the Act which are “reviewable decisions” for the purposes of Part 6.1. Included in the list of “reviewable decisions” is (relevantly) a decision “to change the classification of a care recipient” made under s 29-1(1) of the Act (see item 31 in the table in s 85-1). Sections 85-4 and 85-5 of the Act deal with reconsideration of reviewable decisions. Section 85-5 relevantly provides:
“(1) A person whose interests are affected by a reviewable decision may request the Secretary to reconsider the decision.
(2) …
(3) The person’s request must be made by written notice given to the Secretary:
(a) within 28 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision; or
(b) …
(4) The notice must set out the reasons for making the request.
(5) After receiving the request, the Secretary must reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
…”.
Review by the Tribunal is provided for in s 85-8 as follows:
“An application may be made to the Administrative Appeals Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 85-4 or 85-5.”
10. Part 6.3 of the Act sets out the obligations of approved providers to keep certain kinds of records, including the obligation to keep records that will enable claims for payments of subsidy under the Act to be properly verified: see s88-1(1)(a)(i) of the Act. More specifically, s88-2(1) of the Act imposes an obligation on approved providers to “keep records of the kind specified in the Records Principles” made under s96-1(1) of the Act. Section 19.5 of the Records Principles specifies the kinds of records that must be kept by an approved provider pursuant to ss88-2(1) of the Act. These include:
“(a) records of care recipient:
(i) assessment; and
(ii) appraisal for classification; and
(iii) classification;
(b) individual care plans for care recipients;
(c) medical records, progress notes and other clinical records of care recipients;
…
(l) …”.
The Classification Principles
11. The relevant provisions of the Classification Principles are as follows:
“Part 4 Appraisal procedures
9.16 Purpose of Part (Act, s 25-3)
This Part specifies procedures for making an appraisal of the level of care needed by a care recipient (other than a care recipient who is being provided with care as respite care), relative to the needs of other care recipients.
9.17 Appraisal procedures
(1) The steps in Table 3 must be taken, by the person appraising a care recipient (the appraiser) and by the Secretary, to work out an aggregate figure, and a classification level, for the care recipient.
(2) The appraiser must take the steps in Table 3 for a care recipient from the first day when the care recipient enters the residential care service.
(3) However, for Questions 9 to 16 in Part 1 of Schedule 1, the appraiser should not include care needs of the care recipient for the period of 7 days starting on the first day when the care recipient enters the residential care service.
(4) Subsection (3) does not apply if section 9.23 applies to allow an appraisal to be made over a shorter period.
Table 3
Step 1For each question in Part 1 of Schedule 1, the appraiser must consider the extent to which the care recipient needs care, assistance or support.
Step 2For each question, the appraiser must note, on the appraisal form, the level of care, assistance or support mentioned in the Part (ie A, B, C or D) is needed by the care recipient. (sic) The appraiser must use the comments for each question to decide the most appropriate choice.
Step 3 For the response to each question, the Secretary must identify the score for the response. The scores are mentioned in Part 2 of Schedule 1.
Step 4The Secretary must add up the scores to work out an aggregate figure for the care recipient.
Step 5 The Secretary must use Schedule 2 to identify the aggregate figure range for the aggregate figure worked out under Step 4.
Step 6The Secretary must use Schedule 2 to identify the classification level for the aggregate figure range identified under Step 5. The classification level identified by the Secretary is the classification level for the care recipient.
Part 5How care recipients are classified
Division 1Classification levels for non-respite care
9.18Purpose of Division (Act, s 25-2)
This Division sets out classification levels for care recipients being provided with residential care or flexible care, other than care recipients who are being provided with residential care as respite care.
9.19Classification levels – care that is not provided as respite care
(1)The classification levels are mentioned in column 3 of Schedule 2.
…
Part 9 How classifications are renewed
Division 1 Basis for reappraisal
9.30 Purpose of Division (Act, s 28-1)
This Division provides for reappraisal of a care recipient under Division 28 of the Act.
9.31 Records to be used in reappraisal
A reappraisal may be made using existing records about the care recipient’s needs for care, assistance and support for the matters mentioned in Part 1 of Schedule 1.
…
Schedule 1 Appraisal procedures
(section 9.17)
Part 1 Matters to consider in appraising a care recipient
Guidelines for the interpretation of resident classification scale questions
The resident classification scale is a relative resource allocation instrument
The resident classification scale consists of 20 questions, each having 4 ratings. The allocation of the 20 ratings, based on the assessed care needs of each care recipient, results in a score which places them on a nationally consistent scale, relative to all other people living in residential aged care facilities throughout Australia.
The elements in the resident classification scale have been selected as those elements of care that best discriminate between relative care needs. Therefore, the resident classification scale provides a ranking, ranging from people with the highest care needs to those with the lowest care needs.
Using the Questions
Although the description for recording A for most questions is summarised as ‘No assistance’ or ‘Not applicable’, this does not, in general, mean that no care is given. It may mean that ‘minimal care’ is given. The weightings have been zero rated for statistical reasons since the scale is designed to measure relative care need.
The requirements of the B, C and D ratings are minimums for attaining that level. Where a care recipient’s care needs are above the minimum for that rating, that will remain the applicable rating if they do not meet the criteria of the higher rating.
Where questions list examples, they are listed as an indicative guide and are not exhaustive.
The scale has been developed, and the weights calculated, to reflect supervision, observation, support, prompting and encouragement in the provision of care as well as physical resistance. It incorporates the need for continuing assessment and the monitoring and review of care plans.
The resident classification scale is completed against a clearly defined and documented plan of care which has been based upon an assessment of the care needs of the care recipient. The care needs will have been documented and the care plan will state what services are to be provided to meet these care needs.
Volunteers/purchased services
The resident classification scale takes into account care provided by volunteers or purchased at market rates by the facility for provision to care recipients. If the care recipient meets the cost of any service then the facility cannot claim for that service. Similarly, where services are provided by a government-funded service (either State or Federal) at a subsidised rate, or for free, they cannot be claimed for through the resident classification scale.
Q1 Communication
This question refers to the degree of assistance that the care recipient needs in communicating with staff, relatives and friends and other care recipients, for whatever reason. It measures the additional effort taken by staff to facilitate effective communication where care recipients have:
· hearing loss not remedied by aids (or where there is resistance to the use of an aid);
· visual impairment not remedied by spectacles or contact lenses;
· speech impairments;
· language difficulties (for example, care recipients with little or no English proficiency who do not live in their ethno-specific environment);
· comprehension problems which contribute to communication difficulties.
It also takes into account the effort involved in cleaning and fitting hearing aids, spectacles and lenses.
If the care recipient has no difficulty with communication, record A.
If the care recipient requires assistance with cleaning and fitting of aids, record B.
If facility staff are required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues, record C.
If the care recipient requires assistance from facility staff on almost all occasions to communicate by translating or interpreting, or non-verbally – for example, signing, or using communication aids including talking boards or computers, record D.
RatingsQ1 Communication
No difficulty A Requires no assistance
Some difficultyB Requires assistance with cleaning and fitting of aids
Major difficultyC Requires additional time listening, speaking slowly and clearly, encouraging communication or occasionally using non-verbal cues.
Extensive D Requires assistance to communicate by translating difficulty or interpreting;
OR
Requires communication by non-verbal means on almost all occasions.
…
Behaviour
This section, which contains Questions 9 to 14, relates to a care recipient’s care needs in addition to support for daily living activities, caused by the care recipient’s behaviour.
Ratings are related to staff time and effort in overcoming or reducing the impact of the behavioural problems. Ratings should be based on interventions implemented to prevent or reduce this occurrence. Examples of interventions are vigilant observation, mechanisms to distract the care recipient at times or in circumstances where there is an assessed risk of the behaviour occurring, or special behavioural programs. The interventions should be individually tailored for the care recipient.
The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.
If the care recipient has no behavioural problems, record A for these questions.
If the resident requires monitoring because of irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occurrences, record B.
If interventiions are implemented for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.
If supervisiion and intervention are required daily, record D.
In this section:
monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.
supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.
daily means during a twenty four hour period.
An example of monitoring only and therefore a B rating is when a care recipient becomes agitated during stormy weather. The staff would be aware when stormy weather occurred or was forecast and take special care during that time to reassure and calm the care recipient until the stormy weather passed. There is little likelihood of the need for an intervention beyond the duration of the storm.
An example of monitoring for recurrence leading to supervision on less than a daily basis and therefore a C rating is when a care recipient becomes physically aggressive after he or she is visited by a particular relative. The care recipient may need to be supervised after the departure of the relative but, after a few days, the need for supervision would be reduced until it was not required until the next visit (sic).
Q9 Problem wandering or intrusive behaviour
This question relates to the care recipient wandering, absconding or, while wandering, interfering with other people or their belongings. This may include a care recipient who makes repeated attempts to leave the facility or someone who goes uninvited into any areas within or outside the facility where his/her presence is not welcome or is not appropriate – for example, kitchens or other care recipients’ rooms. It may also include a care recipient who wanders into areas resulting in staff spending time seeking, finding and guiding the care recipient back to his/her proper location or someone who goes into another room and takes things from drawers or cupboards.
Note that this question does not cover circumstances where a care recipient, through verbal disruption, noisiness or physical aggression, interferes with or disrupts other persons in the facility. These are covered in Questions 10 and 11.
The rating should be based on the effort required to put in place interventions that are taken to prevent potential re-occurrence.
The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.
Monitoring the behaviour of all care recipients, as a matter of course, to ensure they do not wander into other care recipients’ rooms or interfere with others or others’ belongings, would not justify a rating other than A. However, a B, C or D rating would be justified where a care recipient, for example, has been assessed previously as having wandered into other care recipients’ rooms causing a disturbance or taking items not belonging to him/her. The rating would, therefore, be appropriate when there is a likelihood of re-occurrence and staff are required to observe the care recipient and to put in place an intervention to prevent him/her from wandering into someone else’s room.
A D rating would be appropriate where a care recipient is assessed as being likely to wander or interfere with others or others’ belongings at any time of the day or night (this behaviour would have been documented previously) and an intervention is in place to manage this potential occurrence.
If the resident requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for those occasional occurrences, record B.
If the interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.
If supervision and intervention are required daily, record D.
In this question:
monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.
supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.
daily means during a twenty four hour period.
Ratings Q9 Problem wandering or intrusive behaviour Not applicable A Does not require monitoring. Occasionally B Requires monitoring but not regular supervision. Intermittently C Requires monitoring for recurrence and then supervision on less than a daily basis. Extensively D Requires monitoring for recurrence and supervision on a daily basis.
Q10 Verbally disruptive or noisy
This question includes abusive language and verbalised threats directed at a care recipient, visitor or member of staff. It also includes a care recipient who indulges in behaviour that causes sufficient noise to disturb other people. That noise may be either, or a combination of, vocal or non-vocal noises such as rattling furniture or other objects.
The ratings should be based on the effort required to put in place interventions that are taken to prevent this potential re-occurrence.
The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.
Monitoring the language of all care recipients, as a matter of course, would not justify a rating other than A. However a B, C or D rating would be justified where a care recipient has previously been assessed as having been verbally disruptive, for example, around meal times, requiring staff to ensure that he/she is attended in the manner most likely to avoid or reduce this outcome.
The rating would not be justified merely because all metallic items that can be clanged together have been removed. The rating would be appropriate where a care recipient has previously been assessed as, for example, making significant degrees of noise and the objects used to create that noise are modified by staff intervention to reduce the degree of noise created.
If the care recipient requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occasional occurrences, record B.
If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.
If supervision and intervention are required daily, record D.
In this question:
monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.
supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.
daily means during a twenty four hour period.
Ratings Q10 Verbally disruptive or noisy Not applicable A Does not require monitoring. Occasionally B Requires monitoring but not regular supervision. Intermittently C Requires monitoring for recurrence and then supervision on less than a daily basis. Extensively D Requires monitoring for recurrence and supervision on a daily basis.
Q11 Physically aggressive
This question includes any physical conduct that is threatening and has the potential to harm a care recipient, visitor or member or staff. It includes, but is not limited to, hitting, pushing, kicking or biting.
The rating should be based on the effort required to put in place interventions that are taken to prevent this potential re-occurrence.
The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.
Monitoring the behaviour of all care recipients, as a matter of course, would not justify a rating other than A. However a B, C or D rating would be appropriate where a care recipient has previously been assessed, for example, as having been physically disruptive around bedtime, requiring staff to implement interventions. The rating would also be appropriate if an intervention was put in place to modify the behaviour of the care recipient at times or in circumstances where there is a higher risk of physical aggression.
If the care recipient requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occasional occurrences, record B.
If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.
If supervision and intervention are required daily, record D.
In this question:
monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.
supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.
daily means during a twenty four hour period.
Ratings Q11 Physically aggressive Not applicable A Does not require monitoring. Occasionally B Requires monitoring but not regular supervision. Intermittently C Requires monitoring for recurrence and then supervision on less than a daily basis. Extensively D Requires monitoring for recurrence and supervision on a daily basis.
Q12 Emotional dependence
This question is limited to the following behaviours:
·active and passive resistance other than physical aggression;
·attention seeking;
·manipulative behaviour;
·withdrawal.
This question does not relate to group activities which are covered in Question 15.
This question applies to one-on-one interventions required to respond to, manage and alleviate demanding behaviours or resistance to other necessary care activities. Such interventions include considerable additional personal attention to calm the care recipient after visitors depart or carefully scheduled activities designed to distract the care recipient when he/she is at particular risk of adopting these behaviours. The rating should be based on the effort required to implement the interventions to prevent the potential re-occurrence of the behaviour. It also applies to one-on-one intervention to manage withdrawal or depression.
The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.
If the care recipient requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occasional occurrences, record B.
If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.
If supervision and intervention are required daily, record D.
In this question:
monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.
supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.
daily means during a twenty four hour period.
Ratings Q12 Emotional dependence Not applicable A Does not require monitoring. Occasionally B Requires monitoring but not regular supervision. Intermittently C Requires monitoring for recurrence and then supervision on less than a daily basis. Extensively D Requires monitoring for recurrence and supervision on a daily basis. Q13 Danger to self or others
This question covers high risk behaviour which includes behaviour requiring supervision or intervention and strategies to minimise the danger. Examples of such behaviour include unsafe smoking habits, walking without required aids, leaning out of windows, self-mutilation and suicidal tendencies.
This question is about behaviour and does not apply where a care recipient has a medical condition that might lead to injury, for example, through fitting or loss of consciousness. It does not apply to a range of behaviours which might in the longer term be considered as damaging or health reducing such as smoking generally or non-compliance with a specialised diet. It applies where there is an imminent risk of harm.
This question excludes acts of physical aggression that are covered in Question 11.
The rating should be based on the effort required to implement interventions to prevent this potential occurrence.
The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.
Monitoring the behaviour of all care recipients, as a matter of course, would not justify a rating other than A. However a B, C or D rating would be appropriate where a care recipient has previously been assessed as, for example, endangering themselves or others requiring staff to supervise the care recipient to identify when this may re-occur and then take preventive action.
If the care recipient requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occasional occurrences, record B.
If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.
If supervision and intervention are required daily, record D.
In this question:
monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.
supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.
daily means during a twenty four hour period.
Ratings Q13 Danger to self or others Not applicable A Does not require monitoring. Occasionally B Requires monitoring but not regular supervision. Intermittently C Requires monitoring for recurrence and then supervision on less than a daily basis. Extensively D Requires monitoring for recurrence and supervision on a daily basis. …
Q19 Therapy
This question relates to therapy provided to care recipients where the facility provides the therapy, or the facility pays for the therapy, and the therapy is documented as a care need. The therapist should meet the requirements for full membership of the therapist’s national or state body OR be a registered nurse for physical therapy. The therapies include:
·physiotherapy;
·physical therapy developed by registered nurses, for example:
passive movements for unconscious or severely disabled care recipients;
techniques such as pelvic floor exercises to promote continence;
·occupational therapy;
·diversional therapy;
·speech therapy.
Music therapy and aromatherapy are not claimed for in this question, but are covered in Question 20.
The therapist’s role is to individually assess the care recipient’s need for the therapy and to develop a personalised therapy plan.
The program does not need to be implemented by the therapist, but may be implemented by a staff member at the direction of the therapist. However, it is the role of the therapist to regularly evaluate, by assessment, the effectiveness of the therapy program.
If the care recipient requires no therapy, record A.
If a therapy program is provided 1 or 2 times a week, record B. This might be to maintain the care recipient’s existing level of function.
If a therapy program is provided 3 or more times a week, but not daily, record C. This might be to improve, or to minimise, loss of the care recipient’s existing level of function, correct a deficit, or, in the case of physiotherapy, maintain or minimise loss of joint range of movement or prevent contractures.
If a therapy program is provided in either daily blocks, or 3 or more times a week in large blocks of time (at least 30 minutes duration), record D.
Therapy provided by different categories of therapists are added together to determine the frequency of the provision of therapy.
Ratings Q19 Therapy No support A No therapy required. Some support B Therapy provided 1 or 2 times a week. Major support C Therapy provided 3 times a week. Extensive support D Therapy program provided either daily or at least 3 times a week in large blocks of time. …
Column 1 Column 2 Column 3 Column 4
Question Question description Level of support Score
Q1 Communication A 0.00
B 0.28
C 0.36
D 0.83Q2 Mobility A 0.00
B 1.19
C 1.54
D 1.82Q3 Meals and drinks A 0.00
B 0.67
C 0.75
D 2.65Q4 Personal hygiene A 0.00
B 5.34
C 14.17
D 14.61Q5 Toileting A 0.00
B 5.98
C 10.65
D 13.70Q6 Bladder management A 0.00
B 2.22
C 3.82
D 4.19Q7 Bowel management A 0.00
B 3.32
C 5.72
D 6.30Q8 Understanding and A 0.00
undertaking living B 0.79
activities C 1.11
D 3.40Q9 Problem wandering or A 0.00
intrusive behaviour B 0.80
C 1.58
D 4.00Q10 Verbally disruptive A 0.00
or noisy B 1.19
C 1.75
D 4.60Part 2 Scores to be applied to the appraisal
Q11 Physically aggressive A 0.00
B 2.34
C 2.69
D 3.05Q12 Emotional dependence A 0.00
B 0.28
C 1.50
D 3.84Q13 Danger to self or others A 0.00
B 1.11
C 1.54 D 1.98Q14 Other behaviour A 0.00 B 0.91 C 1.82 D 2.61
Q15 Social and human A 0.00 needs - care B 0.95
recipient C 1.98 D 3.01Q16 Social and human A 0.00
needs – families B 0.28
and friends C 0.55D 0.91
Q17 Medication A 0.00 B 0.79 C 8.55 D 11.40
Q18 Technical and A 0.00
complex nursing B 0.79
procedures C 5.54D 11.16
Q19 Therapy A 0.00
B 3.64
C 6.10
D 7.01
Q20 Other services A 0.00
B 0.71
C 1.46
D 2.93
Schedule 2 Classification levels
(section 9.17)
Column 1 Column 2 Column 3
Item Aggregate figure range Classification level
1 0 – 10.60 Classification level 8
2 10.61 – 28.90 Classification level 7
3 28.91 – 39.80 Classification level 6
4 39.81 – 50.00 Classification level 5
5 50.01 – 56.00 Classification level 4
6 56.01 – 69.60 Classification level 3
7 69.61 – 81.00 Classification level 2
8 81.01+ Classification level 1
Note: Column 3 of the Schedule indicates the range of classification levels that apply to a care recipient according to the aggregate figure for the care recipient in an item in Column 2. The classification levels are indicated on a numerical scale from the lowest level (classification level 8) to the highest (classification level 1).
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Deparmental Policy
12. Chapter 5 of The Documentation and Accountability Manual (Exhibit R9), issued by the (former) Department of Health and Family Services (a predecessor of the Department of Health and Ageing) on 1 October 1998, contains policy guidelines as applied by the Department in the administration of Part 2.4 of the Act and the Classification Principles. Chapter 5 of the abovementioned Manual contains the following relevant material:
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5. CLASSIFICATION APPRAISAL
5.1 INTRODUCTION
Funding for the care of residents is varied based on their relative care needs. Through the Resident Classification Scale, all residents are categorised into a care category. The category determines a level of subsidy. The appraisal used for the Resident Classification Scale does not consider all of a resident’s care needs. It considers those factors that have been identified as contributing the most to differences in the cost of care.
5.2 LEGISLATION
Funding for the care of recipients is varied based on their relative care needs. Through the Resident Classification Scale all residents are categorised into a care category and accordingly a level of subsidy. The appraisal used for the Residential (sic) Classification Scale does not consider all of a recipients’ (sic) care needs but those that have been identified as contributing the most to the total cost of care.
Aged Care Act 1997, Part 2.4 Classification of Residents, the Classification Principles 1997 and the Classification Amendment Principles 1998 (No.1).
5.3 POLICY
Different residents need different levels of care. Commonwealth subsidies are provided to services based on eight categories of relative care needs of residents.
The level of Commonwealth subsidy for each resident is determined by the Resident Classification Scale (the Scale), and the resident's financial status. The Scale is completed by the approved provider or someone acting on the approved provider's behalf. It contains questions about a resident's clinical needs, ability to do various daily tasks, personal care needs, communication or sensory assistance, and the need for social or emotional support.
5.4 THE STEPS TO CLASSIFICATION
Where a new resident enters a facility, there are 4 steps which you must complete before the Department can classify a resident for funding purposes. These steps are:
· assess the resident’s abilities and problems in writing;
· determine the strategies to deal with the resident’s needs and to facilitate the maintenance of their abilities. The strategies or interventions should be clearly written into the resident’s care plan;
· after the care plan has been updated, complete the Application for Classification form. Section 1 of the form requires the care needs from the care plan to be rated against the classification scale. Section 2 and 3 record the details of the resident and facility; and
· forward the Application for Classification form to the Department.
For a resident whose classification requires re-appraisal, there are also 4 steps you must complete before the Department can classify a resident.
· assess whether the resident’s care plan covers all aspects of their care needs and evaluate whether the strategies on their care plan require revision. The evaluations should be recorded in the resident’s progress notes, assessment forms or the care plan;
· the updated assessments and strategies or interventions should be clearly written into the resident’s care plan;
Note: Where facilities regularly evaluate and update residents’ care plans, as outlined in the Documentation and Accountability Manual, then these steps should already be completed when it is time to re-appraise a resident’s classification.
· after the care plan has been updated, complete the Application for Classification form. Section 1 of the form requires the care needs from the care plan to be rated against the classification scale. Section 2 and 3 record the details of the resident and facility; and
· forward the Application for Classification form to the Department.
The scores recorded by the facility in Section 1 of the Application for Classification must be drawn from written evidence about the care needs of the resident and the interventions in place to meet those needs, ie. from the assessment and care planning documentation for the resident.
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5.5 DOCUMENTATION AND ACCOUNTABILITY
The Department has provided copies of the Documentation and Accountability Manual to all residential aged care facilities. The manual provides guidance on professional care practice and documentation.
The processes involved in the assessment of residents is (sic) detailed in the Documentation and Accountability Manual at Sections 2.2 and 3.2. The Care Planning process is described in Sections 2.3 and 3.3.
The processes of assessment, care planning and implementation and evaluation provide the basis for care delivery and also provide written evidence on which a facility bases its applications for resident classification.
5.6 ACCOUNTABILITY FOR FUNDING CLAIMS
Applications for classification must be based on written evidence about the care needs and care interventions provided for the resident. …
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5.9 REVIEWS OF RESIDENT APPRAISALS
5.9.1 Objectives of Reviews
The Department can review the accuracy of resident appraisals. All reviews look at the facility’s appraisal against the Resident Classification Scale using the Resident Classification Scale guidelines which were in force at the time of original appraisal.
When the appraisal conducted by the facility is not accurate, the resident’s classification will be corrected. A review classification applies for the same period as the classification that was being reviewed, with the exception that a review will not be backdated more than six months. Adjustments will be made to subsidy to reflect changed funding categories.
5.9.2 Authority for Reviews of Resident Classifications
The Department may review the appraisal of a resident at any time. Division 29 of the Aged Care Act 1997 provides the authority for the Secretary to change a classification where it is inaccurate.
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5.9.5 The Review Process
During a review, the Review Officer(s) checks the accuracy of a resident appraisal by reviewing the documentation on which the facility based its application for classification. This will focus on the assessment of relevant resident needs and the interventions in place to meet those needs. This may include:
· looking at the resident’s care plan, ongoing case notes and other documents about the resident’s care before and during the assessment period; and
· other sources of information such as an assessment by an Aged Care Assessment Team.
The Review Officer may also:
· observe the resident and interview him/her about his/her care needs; and
· consult with the supervisor and other care staff who know the resident’s care needs to clarify details which appear in the resident’s care plan.
5.9.6 Review Outcomes
Where the Review Officer agrees with the facility’s appraisal of the resident, the Review Officer will record that the resident’s appraisal has been reviewed and confirmed.
Where the Review Officer does not agree with the facility’s appraisal of the resident, the Review Officer will:
· complete a new Resident Classification Scale for the resident in consultation with the approved provider or his authorised agent for the purposes of completing Scale assessments;
· explain why the facility’s appraisal has not been confirmed;
· sign and date the Declaration at the bottom of the assessment form. The approved provider or agent is not required to countersign this Declaration; and
· explain to the approved provider or agent the right to appeal against a review decision within 28 days of the written notification of that decision.
The Review Officer may provide advice on how to improve documentation practices or help the staff better understand the interpretations of the Scale questions.
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5.10 APPEALS
If an organisation is dissatisfied with a review, it may appeal for reconsideration of that review decision.
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5.10.3 Assessment of Appeals
The Appeal Officer, who assesses the appeal, will not have been involved in the review decision that is being appealed. The appeal appraisal is made using the guidelines in force at the time of the original appraisal by the facility.
In most cases, an appeal will require a visit to the facility.
5.10.4 Appeal Responsibilities
The Appeal Officer will:
·compare the original and review appraisals;
·examine the documentary evidence for the facility’s classification application (including care plans, ongoing personal care notes) and the worksheet compiled by the Review Officer during the original review of the appraisal;
·interview the resident whose appraisal was under review, if necessary; and
·speak with facility staff if necessary, regarding the resident’s condition at the time of the original appraisal.
The Appeal Officer may:
·interview the parties involved in the appeal to find out why:
- the Review Officer’s review of the appraisal differed from the facility’s original appraisal of those needs; and
- the facility lodged the appeal.
The Appeal Officer will write a report on his/her findings and make a recommendation about the appeal. The report of the appeal visit includes the following information:
·the resident’s name and the name of the facility;
·the date of the appeal visit;
·the original, review and appeal classifications;
·details of responses to all Scale questions where there is a difference between the original application and review decision;
·an analysis of the resident’s needs and care interventions against each of the Scale questions where a difference occurred, an overall assessment based on this analysis;
·any other material which the Appeal Officer considers relevant to the appeal; and
·a recommendation as to whether the appeal should be allowed or disallowed.
5.10.5 Documentation
Where the Appeal process reveals poor care documentation, the appeal officer may:
·advise the facility staff of the requirement to keep residents’ records to meet their duty of care obligations and conform with professional and best practice; and
·refer the senior care staff to another facility in the area with a good standard of documentation.
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5.10.7 Decision by Delegate
The delegate considers the material and usually makes a decision within 10 working days of receiving the report of the Appeal Officer.
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5.11 ADMINISTRATIVE APPEALS TRIBUNAL
If an approved provider is not happy with a decision of the appeal decision maker, he/she may make an application within 28 days to the Administrative Appeals Tribunal (AAT) for review of the decision.
Note that an approved provider may not appeal directly to the AAT, he/she must firstly have sought an internal review of the decision.
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The Factual Background
13. The relevant factual background to the present applications for review, as appears from the T documents, is as follows:
14. A Departmental form entitled “Aged Care – Resident Classification Scale – Application for Classification” in respect of care recipient 187825 was completed by Marlene Bell, Documentation Co-ordinator, Brightwater Care Group, for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes there set out. Relevantly, a rating “score” of D was entered in the boxes numbered 9, 10, 11 and 19. The form was signed by Ms Bell and dated “6/4/99”, and was lodged with the (former) Department of Health and Aged Care (“the Department”) on 8 April 1999. (T4; T2, p 12)
15. A similar form in respect of care recipient 393216 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the box numbered 19. The form was signed by Ms Bell and dated “26/3/99”, and was lodged with the Department on 29 March 1999. (T5; T2, p 12)
16. A similar form in respect of care recipient 362793 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the boxes numbered 1, 13 and 19. The form was signed by Ms Bell and dated “18/12/98”, and was lodged with the Department on 22 December 1998. (T6; T2, p 12)
17. A similar form in respect of care recipient 79403 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the boxes numbered 1 and 19. The form was signed by Ms Bell and dated “30/12/98”, and was lodged with the Department on 5 January 1999. (T8; T2, p 12)
18. A similar form in respect of care recipient 193889 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the boxes numbered 1, 13 and 19. The form was signed by Ms Bell and dated “21/12/98”, and was lodged with the Department on 23 December 1998. (T11; T2, p 12)
19. A similar form in respect of care recipient 53851 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the boxes numbered 1, 12 and 19. The form was signed by Ms Bell and dated “2/2/99”, and was lodged with the Department on 3 February 1999. (T12; T2, p 12)
20. A similar form in respect of care recipient 114387 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the boxes numbered 1 and 19. The form was signed by Ms Bell and dated “2/2/99”, and was lodged with the Department on 3 February 1999. (T14; T2, p 12)
21. A similar form in respect of care recipient 237212 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of D in the boxes numbered 1, 12 and 19. The form was signed by Ms Bell and dated “19/1/99”, and was lodged with the Department on 21 January 1999. (T17; T2, p 12)
22. A similar form in respect of care recipient 160139 was completed by Ms Bell for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating “score” was entered in each of the 21 boxes, including, relevantly, a “score” of B in the box numbered 5, a “score” of D in the box numbered 9, a score of B in the box numbered 13, and a “score” of C in the box numbered 19. The form was signed by Ms Bell and dated “16/3/99”, and was lodged with the Department on 18 March 1999. (T20; T2, p 12)
23. On 31 May 1999 and 1 June 1999 Barbara May, Linda Mack, Ann Wilson and Lynn Jones, Commonwealth Nursing Officers, visited the applicant’s aged care facility at Inglewood for the purpose of reviewing the existing classifications (under the Resident Classification Scale in the Classification Principles) regarding various care recipients who resided at that facility, including all of the abovementioned care recipients.
24. In the case of care recipient 187825, Ms May decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 14 above. Relevantly, Ms May changed Ms Bell’s rating “score” of D in each of the boxes numbered 9, 10 and 11 to a rating “score” of C in each box, and Ms Bell’s rating “score” of D in the box numbered 19 to a rating “score” of B. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 187825 from level 4 to level 5.. (T23, T24)
25. In the case of care recipient 393216 Ms May decided a 1 June 1999 to change one of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 15 above. Specifically, Ms May changed Ms Bell’s rating “score” of D in the box numbered 19 to a rating “score” of C. That rating “score” change resulted in a change in the classification level of care recipient 393216 from level 1 to level 2. (T25, T26)
26. In the case of care recipient 362793, Ms Wilson decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 16 above. Relevantly, Ms Wilson changed Ms Bell’s rating “score” of D in each of the boxes numbered 1, 13 and 19 to rating “scores” of C in the box numbered 1, A in the box numbered 13, and B in the box numbered 19. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 362793 from level 1 to level 2. (T27, T28)
27. In the case of care recipient 79403, Ms Jones decided on or about 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 17 above. Relevantly, Ms Jones changed Ms Bell’s rating “score” of D in each of the boxes numbered 1 and 19 to a rating “score” of C in each case. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 79403 from level 1 to level 2. (T31, T32)
28. In the case of care recipient 193889, Ms Wilson decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 18 above. Relevantly, Ms Wilson changed Ms Bell’s rating “score” of D in each of the boxes numbered 1, 13 and 19 to rating “scores” of C in the box numbered 1, and B in each of the boxes numbered 13 and 19. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 193889 from level 1 to level 2.. (T37, T38)
29. In the case of care recipient 53851, Ms Wilson decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 19 above. Relevantly, Ms Wilson changed Ms Bell’s rating “score” of D in each of the boxes numbered 1, 12 and 19 to rating “scores” of C in each of the boxes numbered 1 and 19, and A in the box numbered 12. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 53851 from level 1 to level 2. (T39, T40)
30. In the case of care recipient 114387, Ms May decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 20 above. Relevantly, Ms May changed Ms Bell’s rating “score” of D in each of the boxes numbered 1 and 19 to a rating "score” of C in each case. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 114387 from level 1 to level 2. (T43, T44)
31. In the case of care recipient 237212, Ms Mack decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 21 above. Relevantly, Ms Mack changed Ms Bell’s rating “score” of D in each of the boxes numbered 1, 12 and 19 to rating “scores” of C in each of the boxes numbered 1 and 19, and A in the box numbered 12. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 237212 from level 1 to level 2. (T49, T50)
32. In the case of care recipient 160139, Ms Wilson decided on 1 June 1999 to change some of the rating “scores” entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 22 above. Relevantly, Ms Wilson changes Ms Bell’s rating “score” of B in the box numbered 5 to a rating “score” of A, her rating “score” of D in the box numbered 9 to a rating “score” of B, her rating “score” of B in the box numbered 13 to a rating “score” of A , and her rating “score” of C in the box numbered 19 to a rating “score” of B. Those changes in the rating “scores” resulted in a change in the classification level of care recipient 160139 from level 4 to level 6. (T55, T56)
33. By letter dated 4 June 1999 Ms Jones formally notified the applicant of the changes in the classification levels of various care recipients, including the abovementioned care recipients, which resulted from the reviews undertaken by Ms May, Ms Mack, Ms Wilson and herself on 31 May 1999 and 1 June 1999. (T57)
34. By letter dated 24 June 1999 the applicant requested the respondent to reconsider the decisions to change the classification levels of, inter alios, the abovementioned care recipients. (T58)
35. On 25 and 26 August 1999 Dianne Scott, Iren Hunyadi, Meeli Eriksson and Suzanne Wallington, Commonwealth Nursing Officers, visited the applicant’s Inglewood aged care facility for the purpose of evaluating the abovementioned changes in the classification levels of the relevant care recipients from an examination of the materials on which those changes were based, and making recommendations to the respondent’s delegate regarding the confirming, varying or setting aside of those changes in classification levels.
36. In respect of care recipient 187825, Ms Eriksson made a report, dated 24 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant questions in the Resident Classification Scale (“RCS”) in the Classification Principles:
Q9 (Problem wandering or intrusive behaviour) B
Q10 (Verbally disruptive or noisy) C
Q11 (Physically aggressive) CQ19 (Therapy) A.
Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate set aside Ms May’s decision of 1 June 1999 which changed the classification level from level 4 to level 5, and substitute a new decision that the appropriate classification level is level 6. (T63)
37. In respect of care recipient 393216, Ms Hunyadi made a report, dated 22 September 1999, in which she recommended that the following “rating” was appropriate in relation to the relevant RCS question in the Classification Principles:
Q19 (Therapy) A.
Having regard to that rating, and the other RCS ratings, Ms Hunyadi recommended that the delegate confirm Ms May’s decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T64)
38. In respect of care recipient 362793, Ms Eriksson made a report, dated 24 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q1 (Communication) C
Q13 (Danger to self or others) A
Q19 (Therapy) B.
Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate confirm Ms Wilson’s decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T65)
39. In respect of care recipient 79403, Ms Hunyadi made a report, dated 22 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q1 (Communication) C
Q19 (Therapy) C.
Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate confirm Ms Jones’ decision of about 1 June 1999 which changed the classification level from level 1 to level 2. (T67)
40. In respect of care recipient 193889, Ms Scott made a report, dated 3 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q1 (Communication) C
Q13 (Danger to self or others) B
Q19 (Therapy) B.
Having regard to those and the other RCS ratings, Ms Scott recommended that the delegate confirm Ms Wilson’s decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T70)
41. In respect of care recipient 53851, Ms Eriksson made a report, dated 24 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q1 (Communication) C
Q12 (Emotional dependence) A
Q19 (Therapy) B.
Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate confirm Ms Wilson’s decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T71)
42. In respect of care recipient 114387, Ms Scott made a report, dated 3 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q1 (Communication) C
Q19 (Therapy) C.
Having regard to those and the other RCS ratings, Ms Scott recommended that the delegate confirm Ms May’s decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T73)
43. In respect of care recipient 237212, Ms Scott made a report, dated 3 September 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q1 (Communication) C
Q12 (Emotional dependence) A
Q19 (Therapy) B.
Having regard to those and the other RCS ratings, Ms Scott recommended that the delegate confirm Ms Mack’s decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T76)
44. In respect of care recipient 160139, Ms Wallington made a report, dated 31 August 1999, in which she recommended that the following “ratings” were appropriate in relation to the relevant RCS questions in the Classification Principles:
Q5 (Toileting) A
Q9 (Problem wandering or intrustive behaviour) B
Q13 (Danger to self or others) A
Q19 (Therapy) B.
Having regard to those and the other RCS ratings, Ms Wallington recommended that the delegate confirm Ms Wilson’s decision of 1 June 1999 which changed the classification level from level 4 to level 6. (T79)
45. By Departmental Minute dated 7 October 1999 Ms A McNeill referred the abovementioned reports and recommendedations of Ms Eriksson, Ms Hunyadi, Ms Scott and Ms Wallington to Ms J Hefford, a delegate of the respondent, for decision. (T80)
46. On 7 October 1999 Ms Hefford made a decision in accordance with each of the abovementioned recommendations. (T83, T84, T85, T87, T90, T91, T93, T96, T99)
47. By letter dated 7 October 1999 Ms Hefford formally notified the applicant of her decisions of that date, and of the respective dates of effect of those decisions. (T81)
48. On 8 November 1999 the applicant lodged with the Tribunal applications for review of Ms Hefford’s decisions of 7 October 1999. (T2, pp3-7). [The Tribunal notes that, in terms of s85-8 of the Act, the “reviewable decisions” in this matter are not Ms Hefford’s decisions of 7 October 1999 (although the abovementioned applications for review could not validly be lodged with the Tribunal until those decisions had been made), but rather the decisions of Ms May, Ms Wilson, Ms Jones and Ms Mack (referred to in paragraphs 24-32 above) which changed the classification levels of the relevant care recipients pursuant to s29-1(1) of the Act.]
The Matters For The Tribunal’s Determination
49. The matters for the Tribunal’s determination are, in general terms, the appropriate ratings on the relevant RCS questions in the Classification Principles in respect of each of the abovementioned care recipients, and the resulting appropriate classification level, in accordance with Schedule 2 to the Classification Principles, of each care recipient. Two such matters have, however, been the subjects of concessions by the parties since the lodgment with the Tribunal of the relevant applications for review. As regards care recipient 53851, the respondent has conceded on the basis of the RCS Review conducted by Dr Rosewarne (Exhibit R7), that the appropriate rating on RCS Q1 (Communication) is D (as contended by the applicant): see para 58 of the respondent’s Statement of Facts and Contentions filed on 20 June 2001. As regards care recipient 160139, during the hearing Mr van Hattem (for the applicant) acknowledged that the matter of the appropriate rating on RCS Q5 (Toileting) had not been mentioned in the applicant’s Statement of Facts and Contentions filed on 28 May 2001 but he, nevertheless, initially sought to agitate that matter. Mr Ritter (for the respondent) objected to that course on the ground that the respondent would be prejudiced thereby and submitted that, if the abovementioned matter were to be agitated, a resumed hearing should be held at a future date for that purpose. Mr van Hattem subsequently informed the Tribunal that the applicant no longer wished to agitate that matter and he formally conceded that the appropriate rating on RCS Q5 (Toileting) in respect of care recipient 160139 is A (as contended by the respondent : see Transcript, p126.
50. The Tribunal regards the abovementioned concession by the respondent as rightly made and, accordingly, finds that the appropriate rating on RCS Q1 (Communication), in respect of care recipient 53851, is D. As regards the abovementioned belated concession by the applicant, the Tribunal is, in the circumstances, prepared to accept that concession and, accordingly, finds that the appropriate rating on RCS Q5 (Toileting), in respect of care recipient 160139, is A..
51. The remaining specific matters for the Tribunal’s determination are, therefore, as follows:
· care recipient 187825 – the appropriate ratings on RCS Questions 9, 10, 11 and 19;
· care recipient 393216 – the appropriate rating on RCS Question 19;
160. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 114387, is C.
Appropriate classification level
161. According to the table of “scores” set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 80.95. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 80.95 falls within the range of scores (namely, 69.61 - 81.00) for classification level 2.
162. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 114387, in accordance with the Classification Principles, is 2.
Care recipient 237212
163. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 237212 are, in accordance with paragraph 63 above, limited to those which were in existence as at 21 January 1999 (the date on which the classification of that care recipient was renewed under s 28-1(1) of the Act).
Question 1 – Communication
164. Care recipient 237212, who was born in 1905, had been diagnosed with dementia. The applicant’s relevant documentation (included within annexure 15 to Ms Bell’s Statement (Exhibit A1) and within Exhibit A2) includes:
· “Speech Pathology Communication Profile, dated 6 January 1999, notes that the care recipient has “moderate problem” with understanding of speech, oral expression and speech (articulation), and “severe problem” with hearing (hearing aid worn in right ear);
· “Care Plan – High Level Care”, dated 26 March 1998 and reviewed frequently up to 15 January 1999, notes that the care recipient has “moderate speech and comprehension deficit” related to dementia and requires support for all communication activities; and that care recipient attends “high level conversation group”;
· “Specific Care Plan – Communication”, dated 6 January 1999, lists 14 strategies to optimise communication, including: “Talk to resident using short sentences, or single key words, repeat and clarify”; “Engage in conversation as much as possible during the day”; “Ask ‘open-ended’ questions to encourage conversation…”;
· “Progress Notes” which record:
- 9 February 1998: strategies used for maximising communication referred to, including: “If spoken message is not understood, write down the message…and point to each word as it is spoken”;
- 14 February 1998: “Communicates verbally making needs known with encouragement from staff and physical prompts. Staff ensure her hearing aid is on and use short clear instructions and repeat”;
- 9 March 1998: “…communication problems seem more pronounced now…She is very frustrated when she can’t make her meaning or request known…She keeps trying to find the words rather than using gestures to compensate”;
- 1 July 1998: “No change in communication status since initial assessment. Continues to present with moderate expressive and receptive language impairment and severe hearing loss…Staff to continue to provide considerable support and prompting using strategies to maximise communication effectiveness…”;
- 7 November 1998: as above;
- 11 January 1999: “Continues with deficit, has some comprehension and severe hearing loss. Staff follow indications on Specific Care Plan and monitor effect. Communication is improved with staff encouragement and Care Plan strategies being followed”.
165. The abovementioned documentation confirms that care recipient 237212, by reason of dementia and severe hearing loss, had moderate difficulties with, and required considerable assistance with, communication. The kinds of communication assistance provided by the applicant’s staff, as appear from the documentation, involve a combination of verbal and physical prompts together with encouragement; and ensuring that the care recipient is wearing her hearing aid. The documentation indicates that the care recipient tried to communicate verbally on almost all occasions and, furthermore, most of the strategies listed in the abovementioned Specific Care Plan involve, or at least contemplate or assume, the use of verbal communication with the care recipient. The essential criteria for a D rating on RCS Question 1 – namely, “care recipient requires assistance from facility staff on almost all occasions to communicate by translating or interpreting, or non-verbally…” – are thus clearly not met. This case does, however, squarely fall within the criteria for a C rating on this Question – namely, “facility staff are required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues”.
166. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 1, in respect of care recipient 237212, is C.
Question 12 – Emotional dependence
167. The applicant’s relevant documentation (included within annexure 15 to Ms Bell’s Statement (Exhibit A1)) includes:
· “Care Plan – High Level Care”, dated 26 March 1998 and frequently reviewed up to 15 January 1999, notes that the care recipient has the following behavioural problems: “Extreme emotional dependence”; “Confused, disorientated…, anxious”, and that these are demonstrated extensively (“day and night”). Several “interventions” are specified, including:
- “Explain procedure before starting…”;
- “Face when speaking to her”;
- “Touch, smile and reassure (verbal and physical prompts)”;
· “Behaviour Chart”, dated 11 February 1998 and reviewed on 7 January 1999, indicates certain kinds of problem behaviour. The behavioural problems indicated are:
- “Noisy”: Talks and screams in her sleep, screams loudly…”;
- “Other Behaviour: Confused, Disorientated…, Anxious”.
“Emotional Dependence” is not indicated as a problem behaviour;
· “Progress Notes” which record:
- 11 January 1999: “Emotional Dependence – Is at risk if social isolation. Staff make sure that she is included in all activities. 1:1 support where possible…spend time talking to resident”;
- 17 January 1999: “Emotional Dependence – Staff ensure that resident is included in ward activities and placed so that she can observe staff moving about and performing daily tasks. Resident appreciates 1:1 interaction with staff and relatives, likes to reminisce. Resident feels included following these guidelines”.
168. RCS Question 12 is, according to its terms, limited to certain behaviours, namely, active and passive resistance, attention seeking, manipulative behaviour, withdrawal. The abovementioned documentation does not, in the Tribunal’s opinion, indicate that any of those particular behavioural problems existed in the present case. The various behavioural problems referred to in that documentation – namely, noisy, confused, disorientated, anxious, at risk of social isolation – are, in the Tribunal’s opinion, covered by other RCS Questions, namely, Questions 10 (“Verbally disruptive or noisy”), 14 (“Other behaviour”) and 15 (“Social and human needs – care recipient”), on which, the Tribunal notes, ratings of C, D and C, respectively, have been determined in this case. In the Tribunal’s opinion, RCS Question 12 is not applicable in this case.
169. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 12, in respect of care recipient 237212, is A.
Question 19 – Therapy
170. The applicant’s relevant documentation (included within annexure 15 to Ms Bell’s Statement (Exhibit A1)) indicates that care recipient 237212 was individually assessed by qualified therapists as requiring speech therapy (on 9 February 1998, reviewed on 6 January 1999), physiotherapy (on 13 January 1999), and occupational therapy (on 18 January 1999), and includes the following:
· “Speech Pathology Assessment Form”, dated 9 February 1998 and reviewed on 6 January 1999, lists interventions to maximise the care recipient’s communication skills, including: “To attend 1 x weekly high level conversation group for 1½ hours to promote conversation and social interaction skills”;
· “Allied Health Assessment Summary and Care Plan (Speech Pathology)”, dated 13 January 1999, records a functional problem described as “Communication deficit – moderate comprehension and expressive loss” and prescribes the following “Therapy Intervention Plan”: “Weekly moderate level conversation group in blocks; promote word finding, reading sentences and comprehension, initiation”;
· “Allied Health Assessment Summary and Care Plan (Physiotherapy)”, dated 13 January 1999, records the following functional problems: “Very poor weightbearing …; unable to walk; dependent transfers; reduced joint range of movement; risk of reduced stamina and functional level”, and prescribes the following “Therapy Intervention Plan”: “Transfer using Sara hoist …; staff to push resident in wheelchair; monitor and adapt transfers; monitor joint range of movement; Encourage active movement of all 4 limbs; Attend exercise group x1/week”;
· “Allied Health Assessment Summary and Care Plan (Occupational Therapy)”, dated 18 January 1999, prescribes a “Therapy Intervention Plan” which includes: “Activities, variety – exercise group x1/week; cooking x1/week; communication x1/week; 1:1 prime time; entertainment x1/week; outings x1/week”;
· “Care Plan – High Level Care”: review dated 15 January 1999 states that care recipient attends high level conversation group;
· “Progress Notes” which record:
-9 February 1998: “Therapy: To attend 1 x weekly 1½ hour high level conversation group …”;
-1 July 1998: “… Continues to attend high level conversation group 1 x weekly for 1½ hours …”;
-1 July 1998: “… Physiotherapy consists of monitoring transfers and attendance at activity/exercise group x1/wk”;
-1 July 1998: “[Care recipient] continues to attend dining room for meals, attend all appropriate activities and entertainments. Has settled well”;
-6 January 1999: “… Resident to participate in weekly communication group, goals for reading, for comprehension, conversation initiation and word finding strategies”.
171. The Tribunal is satisfied, on the basis of the abovementioned material, that speech therapy, physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 237212 and that each of those kinds of therapy has been provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient’s need for each kind of therapy was individually assessed by qualified therapists, and that a “personalised therapy plan” (within the meaning of RCS Question 19) was developed for the care recipient by each of the appropriate therapists, namely, the 3 abovementioned Allied Health Care Plans, dated January 1999.
172. The Tribunal is also satisfied that therapy was provided to care recipient 237212, in accordance with the abovementioned care plans, either by the relevant therapist or by the applicant’s staff at the direction of that therapist. As regards the frequency with which such therapy was provided to the care recipient, the Tribunal is satisfied, on the basis of the documentation, that a therapy program (including the 3 abovementioned kinds of therapy) was provided to the care recipient 3 or more times per week, but not as frequently as daily. As regards the duration of each therapy session, the only specific reference to duration is that in relation to the weekly conversation group, namely, 1½ hours. The Tribunal also notes that several of the activities referred to in the occupational therapy care plan are covered by RCS Question 15 (“Social and human needs – care recipient”) on which a C rating has been determined for this care recipient. Accordingly, the information contained in the abovementioned documentation is not sufficient to satisfy the Tribunal that a therapy program (for the purposes of RCS Question 19) was provided to the care recipient at least 3 times per week in blocks of at least 30 minutes’ duration, such as would satisfy the essential criteria for a D rating on that Question. As mentioned above, however, the Tribunal is satisfied, on the basis of the documentation before it, that a therapy program was provided to the care recipient with sufficient frequency to support a C rating on RCS Question 19.
173. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 237212, is C.
Appropriate classification level
174. According to the table of “scores” set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1, 12 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 77.17. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 77.17 falls within the range of scores (namely, 69.61 – 81.00) for classification level 2.
175. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 237212, in accordance with the Classification Principles, is 2.
Care recipient 160139
176. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 160139 are, in accordance with paragraph 63 above, limited to those which were in existence as at 18 March 1999 (the date on which the classification of that care recipient was renewed under s 28-1(1) of the Act).
Question 5 – Toileting
177. As previously mentioned (see paragraphs 49 and 50 above), the applicant has conceded that the appropriate rating on RCS Question 5 is A and the Tribunal, having regard to the circumstances (referred to in paragraph 49 above) in which that concession was made, is prepared to accept that concession.
178. Accordingly, the Tribunal confirms its abovementioned finding that the appropriate rating on RCS Question 5, in respect of care recipient 160139, is A.
Question 9 – Problem wandering or intrusive behaviour
179. Care recipient 160139, who was born in 1914, had been diagnosed with dementia and paranoia and was a resident in “The Village”, a special secure dementia unit within the applicant’s Inglewood aged care facility, from November 1996. The applicant’s relevant documentation (included within annexure 17 to Ms Bell’s Statement (Exhibit A1) and within Exhibit A2) includes:
· “Extended Care Transfer Form”, dated 25 November 1996, and “Social Summary”, dated 26 November 1996, regarding the care recipient’s history of absconding from other aged care facilities, and transfer to “The Village”;
· “Nursing History and Assessment”, dated 27 November 1996, notes a history of scaling fence and absconding from previous home;
· “Master Problem List” records that care recipient’s problem of “Potential for Absconding”, was identified on 8 April 1998;
· “Care Plan – High Level Care”, dated 8 April 1998 and frequently reviewed up to 27 February 1999, notes various behavioural problems, including “wandering”;
· “Specific Care Plan” for the problem of “attempting to abscond”, which lists 8 “interventions” in order to “minimise behaviour”;
· “Progress Note”, dated 26 February 1999, records: “Potential to abscond, Secure area to live in, enables resident to mobilise freely and minimises attempts to abscond. Strategies as per Specific Care Plan effective”.
180. It appears from the abovementioned documentation that the care recipient’s absconding behaviour ceased after his transfer to “The Village” in 1996, there being no recorded episodes of absconding or attempting to abscond in that documentation. The Tribunal accepts, however, that, given the care recipient’s history of such behaviour, the potential for its recurrence existed and, accordingly, it was appropriate to put in place interventions for the purpose of preventing the recurrence of such behaviour. The Tribunal notes, on the other hand, the evidence of Ms Bell, and especially the evidence of Ms Aslett, regarding the “therapeutic environment” of “The Village” which of itself contributed greatly towards the minimisation of the potential for the care recipient’s previous absconding behaviour to recur. The Tribunal acknowledges that the applicant’s staff also had an important role to play in ensuring that that behaviour did not recur but that, given the very beneficial effect of the environment of “The Village”, their necessary role was substantially less than would probably have been the case if the care recipient had been located in a less favourable environment. The Tribunal notes, in this connection, that the interventions listed in the abovementioned Specific Care Plan were mostly of a standard or general nature, and their frequency was not specified.
181. The Tribunal is satisfied, on the basis of the material and evidence before it, that care recipient 160139, by reason of his history of absconding and the potential for that behaviour to recur, required “monitoring” (within the meaning of RCS Question 9) but that, owing to the environment of “The Village” where the care recipient resided, he did not require “supervision” (within the meaning of RCS Question 9) by the applicant’s staff on a frequent or a regular basis. Accordingly, a D or a C rating on RCS Question 9 is not supported by that material and evidence. The Tribunal is of opinion, however, that a B rating on that Question can be justified on the basis that ongoing “monitoring” was required in order that appropriate interventions might be taken to prevent the recurrence of his absconding behaviour.
182. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 9, in respect of care recipient 160139, is B.
Question 13 – Danger to self and others
183. The applicant’s relevant documentation (included within annexure 17 to Ms Bell’s Statement (Exhibit A1)) includes:
· “Nursing History and Assessment”, dated 27 November 1996, notes a history of “suspicion and paranoia about additives to diet and fluids relating to time in concentration camp”, and refers to “self-initiated fasts”;
· “Master Problem List” records that the care recipient’s problem of “Danger to Self – Self-initiated fasting” was identified on 8 April 1998;
· “Care Plan – High Level Care”, dated 8 April 1998 and frequently reviewed up to 27 February 1999, notes various behavioural problems including “Self-initiated fasts” and lists the following “interventions” to manage that behaviour:
-“Report to Registered Nurse if [care recipient] refuses meals and drinks”;
-“Registered Nurse to stipulate time of fast and agreement with [care recipient] to finish fast on a given time”;
-“Ensure he continues to drink during fast”;
-“3 days maximum for fast”;
· “Progress Notes” which record:
-8 April 1998: “[Care recipient] started his fast this morning. Took his orange juice with medications and had a hot Milo. Daughter brought in some chicken broth which he enjoyed. Fast lasted 4 hours”;
-13 December 1998: “Care plan reviewed. [Care recipient] is at times now emptying part of his drinks onto floor. Encourage to complete all drinks, supervise at all times whilst he is drinking and be prepared to intervene …”;
-25 January 1999: “Intermittent drinking. No (sic) clinically dehydrated …”;
-26 January 1999: “[Care recipient] only very occasionally fasts now. His fasting has never become a problem”;
-24 February 1999: “… No recent self-imposed fasting episodes …”;
-26 February 1999: “12-monthly review. Potential risk to health with self-imposed fasting. Strategies effectively have minimised episodes and manage them effectively if they occur”..
184. The abovementioned documentation records only one specific episode of fasting (namely, on 8 April 1998) although there are subsequent general references to occasional fasting episodes in the past. That documentation does not satisfy the Tribunal that such fasting behaviour was ever a significant problem in relation to the care recipient or that it ever constituted the kind of “high risk behaviour” which creates an “imminent risk of harm” with which RCS Question 13 is concerned. In the Tribunal’s opinion RCS Question 13 is inapplicable in this case.
185. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 13, in respect of care recipient 160139, is A.
Question 19 – Therapy
186. The applicant’s relevant documentation (included within annexure 17 to Ms Bell’s Statement (Exhibit A1)) indicates that care recipient 160139 was individually assessed by qualified therapists as requiring speech therapy (on 18 December 1996, reviewed frequently up to 10 February 1999), physiotherapy (on 9 March 1998, reviewed on 23 February 1999), and occupational therapy (on 19 January 1997, reviewed on 31 March 1998 and 5 March 1999), and includes the following:
· “Speech Pathology Assessment Form”, dated 8 December 1996 and reviewed frequently thereafter, lists interventions to maximise the care recipient’s communication skills, including:
-“1:1 interaction 1 x weekly with speech pathologist for 15 minutes to do validation and communication skill maintenance”;
-“1 x weekly 1½ hour conversation group to maintain conversation skills and promote social interaction. Run by Speech Pathologist with aid of Therapy Assistant”;
-“Encourage attendance to, and participation in, appropriate activities and outings”;
· “Allied Health Assessment Summary and Care Plan (Physiotherapy)”, dated 23 February 1999, records functional problems as “Reduced high level balance skills and reduced exercise tolerance” and prescribes the following “Therapy Intervention Plan”: “Extended walking outside, 10 minutes each Monday and Wednesday, over varying terrains to challenge balance… Include in Exercise Group at least 1/week 30 minutes”;
· “Allied Health Assessment Summary and Care Plan (Occupational Therapy)”, dated 5 March 1999, prescribes a “Therapy Intervention Plan” which includes:
- “To attend specific bingo group 1 x weekly”;
-“regular 1:1 therapy assistant and small group interaction eg gardening, reminiscence, working in the shed 1 x weekly”;
-“Invite to participate in activity sessions, community visits …”;
· “Individual Therapy/Program Plan”, dated 17-18 March 1999, includes an occupational therapy program involving the abovementioned weekly group activities, a physiotherapy program involving supervised walking 3 times per week for 20 minutes, and a speech therapy program involving conversation stimulation at all interactions;
· 3 Specific Care Plans (Occupational Therapy), dated 19 January 1997 and reviewed on 8 April 1998 and 10 March 1999, listing numerous interventions in order to maximise residual memory and cognitive abilities and minimise disorientation;
· “Progress Notes” which record:
-28 October 1996: “Resident encouraged to participate in activities … Individual time spent 2 x week … music and books”;
-4 November 1996: “(Physiotherapy) Assessment reviewed … Joins exercise group 1x/wk …”;
-23 March 1998: Occupational Therapy Assessment / Review … [care recipient] has been a regular participant in weekly woodwork sessions for 1 hour, bingo weekly 1 hour, gross motor activities – particularly those involving competition … Regular attendance on outings in the community … Resident tended a garden area, grew beautiful cabbages, corn, potatoes with delight”;
-31 March 1998: Occupational Therapy – “Strategies to maintain interaction, functional capabilities, former life roles, links with … community are reflected in the Specific Care Plans … Strategies to address identified needs have been incorporated successfully into a specific activity program for this resident …”;
-14 April 1998: “Occupational Therapy Assessments, Allied Health Summary and Care Plans completed”;
-23 February 1999 (Physiotherapy): “Assessment reviewed. No change in mobility. [Care recipient] continues to be independent with transfers and mobility – requiring re-direction for purposeful movement … Offer extended walking outside to challenge exercise tolerance and balance skills …”;
-5 March 1999: “Occupational Therapy Review … [care recipient] will join in small group activities ie bingo, gardening and woodwork, and enjoys the stimulation from regular outings with the Therapy Assistants. Resident regularly attends Church … Positively responds to 1:1 interaction. Strategies and programme have been reviewed”.
187. The Tribunal is satisfied, on the basis of the abovementioned documentation, that speech therapy, physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 160139 and that each of those kinds of therapy was provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient’s need for each kind of therapy was individually assessed by qualified therapists, and that a “personalised therapy plan” (within the meaning of RCS Question 19) was developed for the care recipient by each of the appropriate therapists: see the abovementioned “Speech Pathology Assessment Form”, the “Allied Health” Care Plans, and the “Individual Therapy/Program Plan”.
188. The Tribunal is also satisfied that therapy was provided to care recipient 160139, in accordance with the abovementioned care plans / therapy plans, either by the relevant therapist or by the applicant’s staff at the direction of that therapist. As regards the frequency with which such therapy was provided to the care recipient, the Tribunal is satisfied, on the basis of the material and evidence before it, that a therapy program (including the 3 abovementioned kinds of therapy) was provided to the care recipient 3 or more times per week, but not as frequently as daily. As regards the duration of each therapy session, the abovementioned material indicates the following:
· 1:1 interaction with speech pathologist once per week for 15 minutes;
· participation in conversation group once per week for 1½ hours;
· exercise group at least once per week for 30 minutes;
· supervised walking 3 times per week for 20 minutes.
The abovementioned material also indicates weekly attendance by the care recipient at various activities and outings but the Tribunal notes that most of those activities are covered by RCS Question 15 (“Social and human needs – care recipient”) on which a C rating has been determined for this care recipient. In the Tribunal’s opinion, the information contained in the abovementioned documentation does not quite establish that a therapy program (for the purposes of RCS Question 19) was provided to the care recipient at least 3 times per week in blocks of at least 30 minutes’ duration, such as would satisfy the essential criteria for a D rating on that Question. The Tribunal notes, however, that the applicant has claimed a C rating on RCS Question 19 and, as stated above, it is satisfied that a therapy program was provided to the care recipient 3 or more times per week (although not daily or not in blocks of at least 30 minutes’ duration at least 3 times per week) and that, therefore, a C rating on that Question is supported in this case.
189. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 160139, is C.
Appropriate classification level
190. According to the table of “scores” set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 5, 9, 13 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 40.33. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 40.33 falls within the range of scores (namely, 39.81 – 50.00) for classification level 5.
191. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 160139, in accordance with the Classification Principles, is 5.
Decision
192. For the above reasons and on the basis of the above findings the decision of the Tribunal on each of the relevant applications for review is as follows:
· W1999/360 (Care recipient 187825)
The reconsideration decision of 7 October 1999, setting aside the “reviewable decision” of 1 June 1999 and substituting a new decision, is set aside and the “reviewable decision” of 1 June 1999 is affirmed.
· W1999/361 (Care recipient 393216)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/362 (Care recipient 362793)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/364 (Care recipient 79403)
The “reviewable decision” of about 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/367 (Care recipient 193889)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/368 (Care recipient 53851)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/370 (Care recipient 114387)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/373 (Care recipient 237212)
The “reviewable decision” of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.
· W1999/376 (Care recipient 160139)
The “reviewable decision” of 1 June 1999, and the reconsideration decision of 7 October 1999 which confirmed that “reviewable decision”, are set aside and, in substitution therefor, it is decided that the appropriate classification level, in accordance with the Classification Principles, is classification level 5.
I certify that the 192 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Dr D Weerasooriya, Member
Signed: ...............(sgd V Wong)..................................
AssociateDate/s of Hearing 11-14 December 2001
Date of Decision 7 February 2003
Counsel for the Applicant Mr P van Hattem
Solicitor for the Applicant Freehills
Counsel for the Respondent Mr M Ritter
Solicitor for the Respondent Phillips Fox
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