Desilva Health Care Pty Ltd and Secretary, Department of Health and Ageing
[2005] AATA 462
•23 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1105
GENERAL ADMINISTRATIVE DIVISION ) Re DESILVA HEALTH CARE PTY LTD Applicant
And
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr P Fricker, MemberDate23 May 2005
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) John Handley
Senior Member
AGED CARE – classification and appraisal of a resident care patient – approved provider nominated rating of “C” at question 17 of appraisal procedures – respondent substituted rating of “B” – classification ratings dependant on level of care and needs of patient – appraisal to be continued over 21 day period – only issue in review whether administration of ear drops twice daily over six days permitted rating of “C” or whether the administration of drops amounted to a fluctuation in care needs – legislation and objectives discussed – decision affirmed
Aged Care Act 1997 (Cth) s2, s25, s25-3, s25-3 (2), s26, s27, s96-1
Aged Care Principles (Cth)
Re Hammond Care Group and Secretary, Department of Health and Ageing
[2003] AATA 612
Re Sundale Garden Village and Department of Health and Aged Care [2002] AATA 386
REASONS FOR DECISION
23 May 2005 Mr John Handley, Senior Member
Dr P Fricker, Member1. This review concerns the level of classification with respect to a resident patient of the Chelsea Manor Nursing Home (“Chelsea Manor”). The name of the patient is referred to in the T‑documents but in order to preserve her privacy she will be referred to in these reasons as “the patient”. The decision under review was made on 27 July 2004 (T19) by an officer of the respondent. It affirmed a decision made by a primary delegate of 27 April 2004.
2. The hearing was scheduled in Melbourne on 3 May 2005. Ms Desilva, a Director of the Applicant, appeared on its behalf. Mr Gray of Counsel appeared on behalf of the Respondent. A number of documents were lodged by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and will be referred to in these reasons.
the legislation
3. The Aged Care Act 1997 (“the Act”) provides for the Commonwealth to give financial support through the payment of subsidies in the provision of aged care to approved providers (the Applicant is an approved provider). For the purposes of this review the patient was being provided with “aged care” (at Chelsea Manor) as defined within Schedule 1 of the Act because the patient was being provided with “residential care” as that expression is defined at s41-3 of the Act.
4. Section 2 of the Act provides that the objective of the legislation is the provision of funding for aged care that takes account of the quality of care, the type and level of care provided, ensuring access of care that is affordable and appropriate to the needs of people who require it and the accountability of providers of care for the funding that is provided. Additionally, the objectives extend to aged care services being targeted towards persons with the greatest need for those services and the effective planning of delivery of aged care services to persons with the greatest need. When considering the objectives of the legislation, regard must be had to the limited resources available in support of those services and consideration of equity and merit in accessing resources.
5. Part 2.4 of the Act provides that care recipients who have been approved for residential care are to be classified by the level of care that is needed. The classification involves a process of appraisal. Classification is to be determined by the “Classification Principles” made under s96-1 of the Act. The “Classification Principles” include the “Appraisal Procedures” found within Schedule 1 of the Act. The “Classification Principles” are found within the “Aged Care Principles” which incorporate a number of Principles issued by the Minister under s96.
6. Section 25-1 of the Act provides that if the Secretary receives an appraisal under s25-3 in respect of a residential care recipient, the recipient must be classified to the level of needed care relative to other care recipients. The classification must specify an appropriate classification level and in making that classification, regard must be had to the appraisal under s25-3 of the Act.
7. Section 25-3 of the Act provides that appraisal of the level of care needed by a care recipient relevant to the needs of other care recipients, must be made by an approved provider.
8. Section 25-3 (2) of the Act is of considerable significance in these proceedings and is reproduced as follows:
(2)The appraisal must be made over a continuous period of at least 21 days. However, in the circumstances (if any) specified in the Classification Principles, the appraisal may be made over the shorter period specified in the Classification Principles in relation to those circumstances.
9. Section 26 of the Act refers to the date upon which classifications take effect. Section 27 refers to the date when the classifications cease to have effect. Section 28 refers to the renewal of classifications and s29 refers to the changing of classifications.
10. The appraisal procedures found within Schedule 1 of the “Aged Care Principles” comprise a resident classification scale of 20 questions, each having four ratings. The ratings attract particular scores which are ultimately converted into a classification. The appraisal ratings in each question are determined by a description of A, B, C or D, each having its own criteria. A rating of “A” is the lowest of the ratings and a rating of “D” is the highest of the ratings. The quantum of subsidies payable for the provision of aged care is determined by the classification of the patient at the conclusion of the appraisal procedures.
11. For the purposes of this application, question 17 only of the appraisal procedures is relevant and is reproduced as follows:
Q17 Medication
This question refers to medication(s) administered on a regular basis. Infrequent, or less than weekly, administration of oral analgesic medication(s) is not covered in this question.
Injections such as an influenza vaccination or a multi-vitamin injection are not covered in this question.
This question assumes that administration of medication(s) will be carried out in accordance with requirements in relevant State/Territory legislation.
This question includes prescribed eye and ear drops, nebulisers, metered aerosols, turbuhalers, canisters and inhalers, the application of transdermal medication patches, other topically applied prescribed medication(s) and rectally or vaginally administered prescribed medication(s).
This question excludes intravenous infusions which are covered in Question 18. However, intravenous drug administration through a cannula or hypodermic are included in rating D.
This question excludes aperients, which are covered in Question 7.
In this question, if a care recipient would have a B rating, but he/she is resistant to medication administration, for example, because of dementia, and staff are required to spend time and effort in giving significant encouragement (greater than prompting and reminding), record C.
In this question:
assist means giving the correct medication(s) to the care recipient, in the correct manner and at the appropriate times, and ensuring that medication(s) is ingested.
administer means providing physical assistance so that the care recipient completes the ingestion or taking of prescribed medication(s).
a controlled drug means a schedule 8 drug. In some States this may be called a dangerous drug. In some States or Territories, this may include schedule 4D drugs where there is a legal requirement for the recording and storage of schedule 4D drugs to be the same as for schedule 8 drugs.
Ratings
Q17 Medication
No assistance
A
Care recipient self-manages medication.
Some assistance
B
Requires staff to give medication to the care recipient, the care recipient takes the medication him/herself and staff confirm that the medication has been ingested.
Major assistance
C
Requires staff to administer and assist with the taking of prescribed medication;
OR
Care recipient is resistant to medication administration, and staff are required to give significant encouragement (greater than prompting and reminding).
Complete assistance
D
Requires daily administration of a controlled drug;
OR
Requires staff to administer subcutaneous (s/c), intramuscular (i/m) or intravenous (i/v) drug at least daily.
the facts
12. The circumstances giving rise to the present application were not in dispute and may be briefly summarised as follows.
13. The patient was admitted to the Chelsea Manor on 22 December 2003 (refer later). Drug charts were then completed and the progress notes found within the T‑documents record the patient was admitted for permanent care. The medication identified by the drug charts indicates that at admission, the patient was prescribed medication for the treatment of diabetes, heart failure, atrial fibrillation, a gastro intestinal complaint, constipation and to assist sleeping. Medication was also prescribed to reduce fluid and prevent blood clotting.
14. On 23 December 2003 a “Medication Administration Assessment” was completed by the “Quality Coordinator” at Chelsea Manor. The document records that the patient consumes prescribed tablets but she did not “self administer” any of the medication. It was submitted that care was required when dispensing the medication because the patient had poor eyesight and nursing home staff are required to stay with the patient to place the medication into the patient’s hand and to stay with her to ensure that the medication has been consumed.
15. On 20 February 2004, the nursing notes indicate that the patient complained of blocked ears. The patient’s general practitioner was contacted and cerumol ear drops were prescribed and were ordered from a local pharmacy.
16. The notes against 20 February 2004 are relevantly reproduced as follows (T‑docs, p25 and 26):
Date
Time
Progress Notes Seen by
(Service &Signature)
20/2/04
0900
[the patient] stated to staff that her ears where [sic] Blocked, also sore staff contacted Dr Hain’s Surgery. Dr Wise will visit her this afternoon.
Wax in right ear. For cerumol & syringe next week.
PCA MWest
20/02/04
1600
Doctor visited resident @ 16.00 and Examined.
[illegible] in R ear and stated she had developed wax in ear and prescribed ear drops treatment to continue and he is going to syringe next week. Staff reassured resident and explained about doctor’s treatment and faxed prescription to the chemist.
[illegible] RN 2
26/2/04
1PM
The patient had her ears syringed by Dr Hain today. Big improvement in her hearing. . . .
17. The treatment chart found at page 20 of the T‑documents records that 2 or 3 cerumol ear drops were to be instilled into the patient’s right ear at 8.00 a.m. and 8.00 p.m. daily. The treatment commenced at 8.00 a.m. on 22 February 2004 and, consistent with the nursing notes recording that the patient’s ears were syringed at 1.00 p.m. on 26 February 2004, the last administration of the cerumol drops was at 8.00 a.m. on 26 February 2004. It follows that the cerumol drops were instilled into the patient’s right ear on nine occasions between 22 and 26 February 2004.
18. On 22 February 2004, Ms Desilva on behalf of the Applicant completed and lodged an application for classification where, with respect to question 17, she submitted that a rating of “C” should be allowed.
19. Immediately prior to the making of the primary decision in April 2004, the classification of the patient was reviewed by an officer of the Respondent. With respect to question 17, although the Applicant submitted a rating of “C” the review officer rated the patient at this question as “B”. At the date of that review, the patient had ceased having ear drops administered. The reasons for the change in rating from “C” to “B” were recorded as the patient requiring “some assistance” only because the patient consumed the medication herself and staff were required only to confirm that the medication had been ingested. It was suggested that a rating of “C” was not warranted because the patient was not resistant to medication administration and staff were not required to give “significant encouragement to the consumption of the medication or to its administration”. The review officer noted that the “medication treatment chart indicates cerumol ear drops were commenced on 22/02/04 and administered twice daily until 27/02/04”.
submissions
20. In a Statement of Facts and Contentions lodged by the Applicant prior to the commencement of the hearing, it was submitted that the patient should be classified as “C” at question 17. It was submitted that staff of Chelsea Manor were required to administer the ear drops to the patient and at 22 February 2004 when the application for classification was completed, the prescribing doctor had not indicated a duration for the administration of the cerumol drops. Accordingly it was not then known for how long those drops would be administered to the patient. It was submitted that the classification rating should have regard to the level of supervision and assistance by the nursing staff as opposed to the frequency of the administration of the ear drops.
21. In her submissions at the commencement of the hearing, Ms Desilva contended that the review officer was in error by deciding that medication should be administered for at least one week in order to maintain the original submission for classification under question 17. It was submitted that no such basis for classification is to be found within the Act or the “Classification Principles” or the Respondent’s Policy Guidelines. However it was noted that the criteria against question 17 excluded consideration of oral analgesic medication being administered infrequently or less than weekly. It was submitted that in those circumstances administration of ear drops was not applicable because cerumol was not “oral analgesic medication”.
22. Additionally whilst acknowledging that s25-3 of the Act referred to appraisals over a continuous period of at least 21 days, the classification application completed on 22 February 2004 considered an assessment of the patient for the preceding 60 days, that is, from December 2003 when the patient was admitted to residential care.
23. It was submitted that the criteria against question 17 dictated the classification of the patient at “C” because staff were required to “administer and assist with the taking of prescribed medication” being the prescribed cerumol ear drops.
24. In a Statement of Facts and Contentions lodged prior to the hearing, the Respondent submitted that with regard to the objective of the Act and the “Classification Principles”, any appraisal with regard to question 17 should not consider the administration of the cerumol ear drops. It was submitted that the patient should be classified as rating “B” at question 17 and not ‘C” because staff are required only to give medication to the patient and ensure that the medication is consumed. No other assistance is given or is required. It was submitted that this level of care is consistent with the criteria against a rating of “B”.
25. In so far as the administration of the ear drops were concerned, it was submitted that the appraisal of care should be over a continuous period of at least 21 days consistent with s25-3 (2) of the Act. It was submitted that the purpose of appraisal was to calculate the subsidy payable to a registered care provider with respect to a care recipient over a 12 month period. The objectives of the Act determined that funding was to take account of the level of care provided and was to be targeted towards those persons with the greatest needs. It was submitted that the subsidy regime was not intended to provide for minute variations in the level of care and only a “significant” change as found within s9.3.3 of the “Classification Principles” would permit a change of classification.
26. It was acknowledged that the care needs of a patient may change over time and the provision of a 21 day period for appraisal recognised such occurrences. However, mere fluctuations were not relevant to the appraisal process. It was submitted that the Explanatory Memorandum appended to the Aged Care Bill 1997 was also a reflection of the intention of Parliament that the accuracy of an appraisal is to be undertaken by an assessment over a period of at least 21 days because it is understood that patient needs can fluctuate.
27. Additionally, it was submitted that the language of s25-3 (2) of the Act should be examined and significance attached to the words “over”. Additionally, significance should be attached to the introductory words to question 17 particularly the word “regular”.
28. It followed that administration of ear drops over a period of four days did not permit a classification of “C”.
29. Mr Gray reaffirmed the contents of the Respondent’s Statement of Facts and Contentions in his submissions at the hearing. Additionally, he relied upon the Tribunal decisions of Re Sundale Garden Village and Department of Health and Aged Care [2002] AATA 386 in support of his contention that the legislation and the Principles should be given broad interpretation.
30. Additionally, Mr Gray relied on the Tribunal decision of Re Hammond Care Group and Secretary, Department of Health and Ageing [2003] AATA 612 where, at paragraph 61, it was decided that a Tribunal on review will limit its examination of relevant material to that existing at the time that the classification application was made. However, it was recognized that this does not preclude a Tribunal in reviewing the basis for classification, from taking into account other relevant information which assists in understanding the material upon which the classification was substantially based.
conclusion and reasons for decision
31. Having heard the representatives of the parties and having read the extensive documentation made available to us, we have concluded that the submissions of the Respondent are correct and are to be preferred. For reasons which will follow we have decided that the decision under review should be affirmed.
32. This review exposed the objectives of the Act and the limitations and sanctions upon funding. The review also required an examination of the classification and the appraisal principles.
33. Immediately prior to 20 February 2004, the patient was consuming prescribed medication. Staff were required only to supervise the patient to ensure that the medication was consumed. No other assistance was required. From 20 February 2004 until the morning of 26 February 2004, staff administered ear drops to the patient’s right ear at 8.00 a.m. and 8.00 p.m. daily. On 26 February 2004 the patient’s doctor syringed her right ear and thereafter administration of cerumol drops ceased.
34. On 22 February 2004, the Applicant made an application for classification of the patient and at question 17 a rating of “C” was suggested. That rating was made two days after the commencement of the administration of the ear drops. It was submitted that at that date the patient’s practitioner had not indicated a date for the cessation of the ear drops, however the nursing notes indicate, at 20 February 2004, that the patient’s ears would be syringed “next week”.
35. Indeed the right ear was syringed six days after the treatment with drops commenced and in the circumstances we are satisfied that the administration of the ear drops were no more than a “fluctuation” in the patient’s care needs.
36. Immediately prior to 20 February 2004, the level of care by the staff of the Applicant would attract a rating of “B” only. The subsequent administration of the cerumol drops for six days at the rate of twice per day would not, in our view permit a classification of “C”.
37. Classification of the needs of a care recipient is achieved after there has been an appraisal “over a continuous period of at least 21 days”. This provision at s25‑3 (2) is consistent with the objective of the legislation and in the context of subsidies payable to care providers, fluctuations in care do not attract greater subsidies consequent upon altered classification.
38. The Applicant relies on the criteria against a rating of “C” at question 17 because the administration of ear drops “required staff to administer and assist with the taking of prescribed medication”. However, that submission ignores the qualification for a rating of “C” being “major assistance”. We are not satisfied that the administration of ear drops, twice per day, over a period of six days, to a compliant patient, amounts to “major assistance”.
39. In the alternative, if assessment is to be made by reference to the words in the “Ratings” Column, and the criteria in the “Medication” Column, cerumol does require “staff to administer” it. On this alone, the cerumol administration is “major assistance”, but this finding is impermissible. We reiterate that classification must be over a continuous period of 21 days and the medication must be administered regularly (which for reasons that follow, did not occur).
40. For the period 20‑26 February 2004, on the administration only of cerumol, a “C” classification would have been appropriate. But, it was for a period less than 21 days, it was not “regular”, and was short term medication. The other medication consumed by the patient did not require staff to assist and administer, it was consumed regularly and for more than 21 days. A “C” classification is therefore not appropriate.
41. Additionally the introductory language to question 17 does not permit a finding as submitted by the Applicant. That language dictates that question 17 refers only to medication administered on a regular basis. It specifically excludes “infrequent or less than weekly administration of oral analgesic medication”.
42. Of course the administration of cerumol drops does not amount to “oral analgesic medication” but it is clear that the language introducing question 17 does not permit consideration of medication administered “infrequently or less than weekly”. That language is consistent with the language of the first sentence of question 17 namely “regard should be had only to medication administered on a regular basis”. The “medication” referred to in the first sentence is not confined to “oral analgesic medication” as is found in the second sentence. To the extent that cerumol drops amount to “medication” they were not, in the present circumstances, “administered on a regular basis” when they were instilled into the patient’s right ear twice per day, over six days. This does not suggest “regular” administration – when compared to other prescribed medication taken every day over a long period. The short duration of the installation of the drops – to relieve the temporary consequences of a blocked ear, again points to this condition being a fluctuation, not permitting a higher classification. This is consistent with cerumol being recorded on the Short Term Drug Order” found at page 17 of the T‑documents.
43. The installation of the cerumol drops for that duration would not amount to a “regular basis” and collateral to that objective, the appraisal of this patient over a “continuous period of at least 21 days”, having regard to the circumstances of this application, would not permit a classification of “C”.
44. We are of the view that the administration of the cerumol drops caused a temporary short term fluctuation in the care needs of the patient. A classification of “C” would not in the circumstances be appropriate. Rather, a classification of “B” is appropriate and it is for the above reasons that the decision under review should be affirmed.
postscript
45. During the hearing, an issue arose as to whether the patient was admitted to Chelsea Manor on 12 or 22 December 2003.
46. After the hearing concluded, Ms Desilva and Ms Robbins, the solicitor for the respondent, exchanged correspondence on this issue.
47. Both representatives now agree that the patient was admitted on 22 December. The date 12 December was the date of a medication chart completed by the patient’s doctor prior to admission. Further to this, Ms Desilva now acknowledges, that the date 12 December was originally notified by Mr Desilva (in error) in a memorandum on 23 June 2004. In these circumstances no inference should be drawn against the respondent.
48. Nothing turns on this issue; however, we express our gratitude to both representatives in resolving this issue and bringing to our attention.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Dr P Fricker, MemberSigned: Alice Beattie
AssociateDate of Hearing 3 May 2005
Date of Decision 23 May 2005
Solicitor for the Applicant Nil – Mrs N Desilva
Counsel for the Respondent Mr P Gray
Solicitor for the Respondent Phillips Fox
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