Peninsula Care Pty Ltd and Minister for Health and Ageing
[2004] AATA 635
•22 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 635
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1102
GENERAL ADMINISTRATIVE DIVISION )
Re PENINSULA CARE PTY LTD Applicant
And
MINISTER FOR HEALTH AND
AGEINGRespondent
DECISION
Tribunal Senior Member KL Beddoe
Ms J Cowdroy, MemberDate22 June 2004
PlaceBrisbane
Decision The decisions under review are affirmed. ..................[Sgd].......................
KL Beddoe
Senior Member
CATCHWORDS
NURSING HOMES – regulation – notional scale of fees – CAM and SAM funding - classification of activities - whether activities properly characterised as “nursing and personal care” activities or “domestic activities” - nursing and personal care staff performing duties other than nursing and personal care duties – meal plating and serving, water jug collection and distribution, laundry duties – domestic activities – Tribunal considers favourable quantitative adjustments have been made - decisions affirmed
National Health Act 1953 ss 4(1), 40AA(7), 40AGA(4), 40AGA(5), 45D, 45E, 46D(1), 46D(2), 48B, 48C, 48D, 48E, 49, 51(1), 51(2), 51A, 51B, 51C
National Health Regulations 1954 reg 4A, Schedule 1A
Aged and Disabled Persons Homes Act 1954
Nursing Home Financial Arrangements Principles 1988
Nursing Home Financial Arrangements Principles 1989Nursing Homes (Participating) Circular No 72
Seventh Mingcourt Pty Ltd v Lawrence (1996) 40 ALD 603
Re Tricare (Annerley) Pty Ltd and Minister for Health and Family Services [2001] AATA 653REASONS FOR DECISION
22 June 2004 Senior Member KL Beddoe
Ms J Cowdroy, MemberPrologue
“At the end of each year approved nursing homes are required to submit an NH20 form on which they report their actual expenditure during the year for the provision of nursing and personal care to residents and in respect of other costs reimbursed expenditure. The reported expenditure is compared by the Department of Human Services and Health (the department) with the amount paid to the nursing home and, subject to an allowable tolerance range, a further amount to be paid to the nursing home is determined, or alternatively, an amount to be recovered from the nursing home as a negative loading on future monthly payments is determined.
Periodically the department engages in a process known as ‘validation’ in respect of a particular nursing home. The object of validation is to audit the records of the nursing home to verify that costs claimed for CAM and OCRE in NH20 forms were incurred in accordance with the Act. Following validation the secretary, or more usually it seems, a delegate of the secretary, will consider whether there should be an adjustment to the nursing home’s fees, and if so in what amount.”
(per Branson J in Seventh Mingcourt Pty Ltd v Lawrence (1996) 40 ALD 603 at 606-7)
1. The applicant company seeks review of decisions made by the Minister’s delegate on internal review and notified on 31 October 2001.
2. The essence of these decisions is conveniently set out in the applicant’s Statement of Facts and Contentions as follows:
“The first of the reviewable decisions
2.The first of the reviewable decisions concerned the earlier determinations of 1994-95 notional scales of fees by the Delegate in respect of various approved nursing homes run by the applicant. Those determinations of the 1994-95 notional scales of fees had required a consideration of earlier, relevant accounting periods between 1988-89 and 1992-93.
3.For the Peninsula Nursing Home the determination of the 1994-95 notional scale of fees included consideration of the accounting periods 1991-92; 1992-93 and 1994-95.
4.For the Redcliffe Nursing Home the determination of the 1994-95 notional scale of fees included consideration of the accounting periods 1988-89; 1989-90; 1990-91; 1991-92; 1992-93 and 1994-95.
5.For the Rothwell Nursing Home the determination of the 1994-95 notional scale of fees included consideration of the accounting periods 1988-89; 1989-90; 1990-91; 1991-92; 1992-93 and 1994-95.
6.For the Scarborough Nursing Home the determination of the 1994-95 notional scale of fees included consideration of the accounting periods 1988-89; 1989-90; 1990-91; 1991-92; 1992-93 and 1994-95.
7.In respect of Peninsula Nursing Home; Redcliffe Nursing Home and Rothwell Nursing Home, the first reviewable decision affirmed each of the notional scale of fees determinations for 1994-95.
8.The first reviewable decision varied the notional scale of fees determination for the Scarborough Nursing Home of 1994-95.
The second of the reviewable decisions
9.The second of the reviewable decisions concerned the earlier determinations of notional scales of fees by the Delegate in respect of the various approved nursing homes run by the applicant.
10.For Peninsula Nursing Home, the second reviewable decision related to the notional scale of fees determinations for the accounting periods 1995-96; 1996-97 and 1 July 1997 to 30 September 1997.
11.For Redcliffe Nursing Home, the second reviewable decision related to the notional scale of fees determinations for the accounting periods 1995-96; 1996-97 and 1 July 1997 to 30 September 1997.
12.For Rothwell Nursing Home, the second reviewable decision related to the notional scale of fees determinations for the accounting periods 1995-96; 1996-97 and 1 July 1997 to 30 September 1997.
13.For Scarborough Nursing Home, the second reviewable decision related to the notional scale of fees determinations for the accounting periods 1995-96; and 1 July 1996 to 30 August 1996.
14.For Mt Coolum Nursing Home, the second reviewable decision related to the notional scale of fees determinations for the accounting periods 30 August 1996 to 30 June 1997 and 1 July 1997 to 30 September 1997.
15.In respect of Peninsula Nursing Home; Redcliffe Nursing Home; Rothwell Nursing Home and Mt Coolum Nursing Home, the second reviewable decision affirmed each of the notional scale of fees determinations for each of the relevant accounting periods.
16.The second reviewable decision decided to vary the notional scale of fees determination for the Scarborough Nursing Home for each of the relevant accounting periods.”
3. The issues to be decided by the Tribunal are complex as to the detail of the facts but in essence are:
(a)whether activities carried out at the respective nursing homes are properly characterised as “nursing and personal care” activities;
(b)to what extent, timewise, did nursing and personal care staff perform duties other than nursing and personal care duties; and
(c)to what extent, timewise, the applicant claimed non-nursing and personal care employees were performing nursing and personal care duties.
4. Part V of the National Health Act 1953 (“the Act”) provided for approval of nursing homes under the Act and Part VA of the Act provided for payment of Commonwealth benefits in respect of nursing home care provided by approved nursing homes in respect of approved nursing home patients.
5. For the purpose of obtaining payment of benefits the proprietor of a nursing home is required to make a monthly claim, in the authorised form, for benefit that is, or may become payable in respect of that month and to provide information as shown on the authorised form or as requested by the Secretary (sub-section 51(1)).
6. Sub-section 51(2) of the Act provides that, subject to section 51A, payment of benefit shall not be made except in respect of amounts included in a claim submitted in accordance with the section. Section 51A authorises the payment of advances of benefit at the discretion of the Secretary.
7. As we said during the hearing, we do not understand that the Act confers on claims for benefit any prima facie status that the claims (form NH20) are correctly made until proved otherwise.
8. Sections 51B and 51C deal with treatment and recovery of overpayments of benefits but nothing arises under these provisions for the Tribunal’s consideration.
9. In particular, section 46D(1) provides for the determination, by the Secretary of the Department for Health and Ageing, of a notional scale of fees in respect of each approved nursing home within three years after the end of an accounting period in respect of the nursing home.
10. The notional scale of fees for the nursing home is determined in relation to the accounting period in respect of the home and in respect of the nursing home care patients in the nursing home during the accounting period (sub-section 46D(2)). Special assistance benefits as set out in sections 48B, 48C, 48D, 48E and 49 are excluded from the determination of the notional scale of fees under sub-section 46D(2). In determining the notional scale of fees the Secretary must comply with the “Principles”.
11. There is no dispute that each of the nursing homes, conducted by the applicant, was at all relevant times a nursing home as defined.
12. “Nursing home care” is defined to mean accommodation and nursing care of a kind provided in a nursing home and includes any prescribed service of a kind provided in a nursing home.
13. “Approved Nursing Home Patient” means a person who is an approved nursing home patient for the purposes of Part VA of the Act and within the terms of section 46A of the Act.
14. Section 45E sets out the consequences of not complying with standards determined by the Minister in accordance with section 45D of the Act.
15. Of more relevance to this case is that the Principles are formulated in a written instrument by the respondent Minister and provide Principles for determination of any matter required by the Act to be determined in accordance with those Principles (sub-section 40AA(7)). The written instrument is the “Nursing Home Financial Arrangements Principles 1988” gazetted in Gazette No S185 of 30 June 1988 and the “Nursing Home Financial Arrangements Principles 1989” gazetted in Gazette No P16 of 28 June 1989. We will describe them as “the 1988 Principles” and “the 1989 Principles”. The 1989 Principles have been amended since the initial notification in 1989.
16. Document T5 is an unofficial consolidation of the 1989 Principles as at 17 November 1993 and Document T6 is also an unofficial consolidation of the 1989 Principles as amended to 17 January 1996.
17. While there are differences in words, we are satisfied that there is no difference in effect for present purposes. We cite Principle 4 in T6 which sets out the criteria for determination of a notional scale of fees for a nursing home. In determining a notional scale of fees in relation to a patient in a classification in a nursing home, the Secretary must take into account:
(a) the standard fee for a patient in that classification;
(b)any loadings in relation to the nursing home that are determined by the Secretary in accordance with Principle 32; and
(c)other cost re-imbursed expenditure.
18. Of particular importance in these matters is the standard fee for a classified patient. That standard fee is to be determined in accordance with section 40AGA of the Act. Sub-section 40AGA(5) relevantly provides that in determining that standard fee it is necessary to apply the formula set out in the sub-section. For present purposes we are concerned with the factor “N” in that formula.
19. Sub-section (5) defines the factor “N” as follows:
“N is the product of:
(a)the number of staff hours per day of nursing and personal care determined by the Minister to be the number of staff hours of such care to be taken into account for the purposes of this section in relation to patients having that classification; and
(b)the amount determined by the Minister to be, for that financial year, the amount to be taken into account for the purposes of this section in relation to the cost per staff hour of providing nursing and personal care in the State or Territory in which the nursing home is situated.”
20. In determining the scale of fees in relation to classified patients in an approved nursing home, the Principles formulated pursuant to sub-section 40AA(7) are to be taken into account (sub-section 40AGA (4)).
21. The Principles (both 1988 and 1989) set out the definition of nursing and personal care, which, so far as is relevant, reads as follows:
“‘nursing and personal care’ means:
(a)the planning or giving of nursing care to an approved patient by nursing and personal care staff;
(b)other care (including therapy and counselling, and oral care where this is not given by a dentist, dental therapist, or other member of the dental profession) provided to an approved patient personally by nursing and personal care staff to –
(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance;
(ii)assist the rehabilitation of the patient; or
(iii)meet a special need of the patient;”
22. We are satisfied that the rest of the definition of “nursing and personal care” is not relevant to the issues before the Tribunal.
23. Essential to the definition of nursing and personal care is the definition of “nursing and personal care staff” which is also set out in the 1989 Principles as follows:
“‘nursing and personal care staff’ in relation to a nursing home, means employees of the proprietor of the nursing home or contract staff who provide nursing and personal care to patients of the nursing home, and who are –
(a) the Director of Nursing;
(b)registered nurses (other than the Director of Nursing), including registered nurses who supervise the work of other nurses;
(c)enrolled nurses;
(d)assistants to nurses;
(da)wardsman;
(db)personal care attendants or house care persons;
(e)therapists or assistants to therapists; or
(f)medical practitioners.”
24. Principle 2(1) defines “enrolled nurse” to mean a person who is enrolled by a Nurses’ Registration Board in a State or a Territory.
25. “Assistant to a Nurse” is also defined to mean a person who assists a nurse to provide nursing and personal care to approved patients and who is not a registered nurse or an enrolled nurse. In these reasons the abbreviation “AIN” is used for “Assistant to a Nurse” as defined.
26. Sub-section 4(1) of the Act relevant defines “proprietor” to mean the owner of the business or undertaking carried on at the nursing home unless the contrary intention appears. Principle 2(1) defines “proprietor” to mean a proprietor as defined in sub-section 4(1) and an associate of a proprietor within the meaning of sub-principle 2(2).
27. Principle 2(2) relevant defines the meaning of “associate” to include, where the proprietor is a corporation, any officer or member of the corporation.
28. Principle 7(1) provides that the basic nursing and personal care cost of an approved nursing home shall be the estimated cost, at the relevant award rates, of the salaries, wages and allowances paid for approved levels of nursing and personal care staff in the financial year ending on 30 June 1988.
29. Principle 8 includes a series of Principles to apply in determining the estimated cost of salaries, wages and allowances, for the purpose of Principle 7, to be taken into account. In particular, sub-principle 8(2) provides that the Secretary shall only take into account the cost of the time of nursing and personal care staff which is used exclusively for the purpose of providing nursing and personal care in relation to the nursing home.
30. While in practice it may be more complex, the Act provides for two types of funding:
“CAM”- the provision of funding for nursing and personal care as determined by the application of the Principles to the circumstances of the nursing home.
“SAM”- a standard daily amount for funding the nursing homes infrastructure costs and profit.
31. There is also a third type of funding which covers reimbursement of workers’ compensation insurance, payroll tax, superannuation and long service leave incurred by a nursing home for all staff of a nursing home. This funding is referred to as “OCRE” – other cost reimbursed expenditure. No issue arises directly in relation to such reimbursed expenditure.
32. We note at this stage the dicta of Branson J in Seventh Mingcourt Pty Ltd v Lawrence (1996) 40 ALD 603 at 611, as follows:
“The need for fair and consistent administration of Pt V of the Act will, in my view, call for the decision-maker to assess the particular scale of fees fixed against scales of fees for other nursing homes in comparable circumstances, and further to have regard to circulars issued by the department for the guidance of proprietors of nursing homes which remained operative at times relevant to the decision which he or she is required to make.”
The Department’s Circulars
33. In 1987 the Department of Community Services issued “Nursing Homes (Participating) Circular No 72” regarding the introduction of new financing arrangements for nursing homes from 1 July 1987. The essence of the new scheme was said to be that the Commonwealth would, in effect, purchase nursing home care on behalf of residents for a pre-determined price.
34. The circular dealt with a range of issues. In particular, it included the following:
“19The nursing and personal care fee module will re-imburse the costs of employing approved levels of nursing and personal care staff. …”
35. Attachment 1 of the circular sets out specific categories of nursing and personal care staff that were to be covered by the module.
36. Clause 8 includes the following:
“8. The costs to be met from the Nursing and Personal Care Fee Module will be:
(i)the approved wages, salaries and allowances for approved levels of nursing and personal care staff including the costs of replacing these staff on approved leave.
Nursing and personal care staff are:
-Registered Nurses (including Director of Nursing)
-Enrolled Nurses/Aides
-Assistants to Nurses (staff without formal qualifications who assist nurses in providing personal care to residents)
-Therapists and assistants providing therapy services.
Of the above staff categories, assistants to nurses and therapists assistants are sometimes employed to perform a combination of nursing and personal care duties and other duties eg. Cleaning and gardening. In these cases the proportions of salaries and wages paid in respect of the nursing and personal care duties may be taken into account in this item to the extent that their inclusion would not result in the home exceeding the number of hours for nursing and personal care approved by the Department having regard to State and Commonwealth requirements. The nursing and personal care functions are the professional functions carried out by nurses, the functions listed in Schedule 2 of the gazette notice of 14 March 1986 for personal care services in hostels and functions closely associated with or supportive of the above functions. At Appendix 1 is a copy of the gazette notice for personal care services in hostels. Where bed making is one of the duties of assistants to nurses that duty is to be included as a function under the above definition for this category of staff.”
37. The said Appendix 1 is a copy of Commonwealth Gazette No S111 of 4 March 1986 which contained a notice in the name of the then Minister for Community Services under the Aged and Disabled Persons Homes Act 1954. Schedule 2 of the Minister’s notice is as follows:
“SCHEDULE 2 PERSONAL CARE SERVICES
(1) The provision to any eligible person who requires it of assistance with –
(a) bathing, showering or personal hygiene;
(b) toileting;
(c) dressing or undressing;
(d) mobility;
(e) transfer;
(f) meals and refreshments; or
(g) sensory communication or the fitting of sensory communication aids.
(2)Where an eligible person requires a special diet – the provision of such a diet to that person.
(3)The control and administration of prescribed medications to an eligible person, subject to legal restrictions on the provision of such services.
(4)The provision to any eligible person who requires it, of rehabilitative support to meet a professionally determined therapeutic need.
(5)The provision, to any eligible person who contracts a short-term illness, of such assistance beyond accommodation services of a kind specified in Schedule 1 as may be needed.
(6)The provision to any eligible person who requires it of treatment such as eye drops, back rubs, dressings, and urine tests, subject to legal restrictions on the provision of such services.
(7)The provision of long-term emotional support and direct supervision for any eligible person, diagnosed as suffering from a form of dementia, or a functional psychotic condition requiring long-term medication.
(8)The provision of emotional support to any eligible person suffering from an emotional needs condition such as grief or depression.”
38. By a circular dated 6 July 1992 (T4), the Department of Health, Housing and Community Services sought to clarify certain aspects of Circular 72 and an earlier Circular No 52.
39. T4 included the following:
“Circulars 72 and 53, issued prior to 1 July 1987 to Participating and ex-Deficit Financed homes respectively, provided detailed information on the CAM/SAM system. Those circulars raised the issue of the need for a definition of the boundary line between NPC costs and non-NPC costs for CAM funding purposes and concluded that it would not have been appropriate to adopt an overly prescriptive approach in defining that boundary. It was considered that a prescriptive definition which addressed, in detail, every possible circumstance or contrivance would have undermined the flexibility offered to proprietors to manage their resources responsibly.
However, while flexibility is a key feature of the system and one which has been welcomed by the industry, this does not mean that it is open to proprietors to use CAM funds to subsidise their non-acquittable SAM funding. Recently, elements of the industry have advanced claims that meal preparation, placement of food on plates and delivery of plates to the dining area are CAM tasks and also that bed making is a CAM task even when it is performed by SAM staff. As a consequence of these claims, the Department has to address explicitly and in detail very narrow issues within the CAM framework.
Two such examples that have recently been highlighted relate to situations where proprietors have attempted to claim costs in relation to plating and bed making.
1. Plating
In order to clarify the situation, the various tasks relating to food preparation and serving are defined and it is indicated whether they are CAM or SAM tasks:
TaskFunding
. Meal preparation – cooking etc. SAM
. plating – the placement of food from cooking SAM
vessels in a kitchen or bain maries in a dining roomonto plates
. delivery – sometimes known as “running the trays” - SAM
the delivery of the plated meal from the kitchen to the
dining area, usually on trays or trolleys
. serving – taking the meal from the tray or trolley in CAM
the dining area and placing it before the resident
. supervision of or assistance with eating CAM
. removing and cleaning plates and utensils. SAM
2. Bed Making
The boundary in relation to bed making was clearly defined in circulars 72 and 53, where it was stated that:
‘Where bed making is one of the duties of assistants to nurses that duty is to be included as a function under the [CAM] definition.’
In other words, the question of whether or not, in specific instances, bed making is to be regarded as a CAM-related function must be considered in the context of the other work carried out by that staff member. If, as stated in the circulars, bed making is just one of a range of legitimate NPC duties undertaken by nursing staff, then the cost is acceptable for funding under CAM. If, however, bed making is the only (or virtually the only) task undertaken by a staff member or is performed by staff whose primary role is domestic in nature, the cost will not be accepted for funding under CAM.
It should also be noted that the costs of NPC staff performing related laundry-type duties, such as washing, folding and handling of bulk linen or clothing, are not acceptable CAM costs.
It must be stressed that the Department views attempts by proprietors to transfer costs from SAM to CAM with great concern, and will ensure that misapplied funding is identified and recovered. This is not to say, however, that the use of NPC staff to perform non-NPC duties is, of itself, a concern. It is where the costs associated with the performance of non-NPC duties are claimed by proprietors on the NH20 Reconciliation Form that concern arises.”
40. “CAM” means the Care Aggregated Module and is factor N in section 40AGA as noted above.
41. “SAM” means the Standard Aggregated Module relating to infrastructure costs of a nursing home and is defined in section 40AGA as the standard infrastructure allowance per occupied bed per day in a nursing home.
42. We have considered the departmental policy as expressed above to fairly represent the apparent intent of the legislation. We have considered whether the policy relating to the CAM costs is consistent with regulation 4A and Schedule 1A of the National Health Regulations 1954. We are satisfied the policy is so consistent.
43. In the result we are satisfied that the publicised departmental policy is the appropriate basis for giving effect to the legislation.
44. We are mindful of the criticism that the policy is overly rigid in the demarcation between CAM and SAM duties. In our view that criticism is misplaced because the departmental policy accepts that the nursing and personal care needs of residents are paramount. In particular, we are satisfied the nursing responses to the individual needs of residents are not to be confused with routine responses to the needs of residents. Clearly, residents need to be fed but that does not alter the characterisation of food preparation and plating of meals.
45. A considerable volume of the material before the Tribunal was obtained by the respondent, directly or indirectly, it seems because the respondent purported to exercise powers conferred by section 42 of the Act. Whether there was any acting in excess of jurisdiction in obtaining this material is not a question we can answer. The material having been put before us, we are of the view that we must consider it in coming to our decision.
46. Mr Horneman-Wren appeared for the applicant company and Mr Eliadis appeared for the respondent Minister. The documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (including supplementary documents) were before the Tribunal and further documents were tendered and marked as Exhibits (A to V and 1 to 43).
47. Exhibits 12 to 16 are the subject of an order under sub-section 35(2) of the Administrative Appeals Tribunal Act 1975.
48. Oral evidence was given by the following witnesses. Those witnesses giving evidence about a specific nursing home have been grouped accordingly.
Redcliffe Nursing Home
Margaret Cook (also Executive Director of Nursing)
Janice Buchback (also Peninsula)
Brenda Summers
Susanne Stace
Irene Shaw
Deborah Kilvington
Mary HoitinkBetty Quinn
Rothwell Nursing Home
Debra Wallwork
Sonja Wood
Leonora Jansen
Carey Kearney
Cindy East
Colleen MonaghanRobert Edwards
Peninsula Nursing Home
Peggy Mellor (also Executive Director of Nursing)
Mt Coolum Nursing Home
Rhonda Robinson
Scarborough Nursing Home
Tracy Hurdy
Helen Keep
Monica Kindleysides
Jacqueline Porteous (also Rothwell)Patricia Riley (also Redcliffe)
Department of Health and Ageing
Bruce Wasley
James EvansValentina James
49. The Tribunal also heard evidence from the applicant’s accountant and two consultants, Mr Brotherhood and Mr Underwood.
50. The Tribunal did not hear evidence from the persons who, we are satisfied, are the controlling minds of the company.
51. The Tribunal makes the following findings of fact.
52. There is a whole range of duties which must be carried out within a nursing home and in this case the applicant employed staff to carry out those duties. There was, and the Principles required, a demarcation of duties between nursing and personal care staff and other staff of the nursing home.
53. In each nursing home the applicant employed nursing staff who fell into one of the following categories:
(a) Director of Nursing
(b) Registered Nurse
(c) Enrolled Nurse(d) Assistant in Nursing
54. The applicant also employed persons who we will call domestic staff. Examples of such categories of employment are kitchen staff, laundry staff, cleaning staff and grounds staff.
Water Jugs
55. In each of the nursing homes it is the practice to provide each resident with a jug of water and glass on their bedside table or in the vicinity of their bed. There are some exceptions to the general practice where a resident needs special fluids.
56. We accept that dehydration can be a serious problem for elderly residents and that personal care of those residents includes attention to their hydration. This involves monitoring hydration and replacing fluid loss. While we accept that offering a glass of water and assisting with drinking the water is an everyday task capable of being performed by non-skilled persons, it is the further step of being conscious of the resident’s hydration needs that makes the whole task part of the responsibility of the nursing function of personal care.
57. In this case the issue is to define when the personal care function commences. Is it when the jugs and glasses are washed, subsequently filled with water and placed in the resident’s room or is it merely the offering of and assistance with the glass of water to be consumed by the resident?
58. It was put to us that the nurse must be in control of the water jugs because that control is essential to being in control of the resident’s hydration requirements. It was also put that there should be only limited access to residents’ rooms, for privacy reasons, by persons other than nurses. This meant that fresh water jugs and glasses are left outside each resident’s room to be taken into the room by nursing staff and the reverse process applies to used jugs and glasses.
59. There is no suggestion in the material before us that water consumption was formally recorded although problems of dehydration would be recorded. The system of control of hydration by nursing staff was an informal oversight of consumption only to ensure hydration was achieved consistent with good nursing practice.
Morning and Afternoon Teas
60. We accept that, as with hydration, it is necessary for nursing staff to monitor nutrition of residents. We also accept that morning and afternoon teas form part of a nursing home’s program for hydration and nutrition of the residents. While this may seem extreme we accept that the residents of the subject nursing homes have been assessed as requiring 24 hours nursing care, suffer a range of physical and psychological disabilities and thereby require a level of supervision of their diet which others may find extraordinary. Dietary requirements vary from resident to resident and in our view supervision of those dietary requirements is necessary for the wellbeing of the resident. That supervision is properly characterised as personal care but issues arise as to the necessary extent of that supervision in the context of the nursing and personal care function.
Meals – Plating Of
61. As with morning and afternoon teas the meals served to residents in the dining room or in the resident’s own room are a part of each nursing home’s hydration and nutrition program.
62. We are satisfied that primary responsibility for a resident’s nutrition needs is with a dietician who determines the basic menus and the needs of individual residents. We are also satisfied that preparation of those meals is the responsibility of the domestic staff.
63. Issues arise when it comes to the plating of meals. We accept that plating of meals must be supervised, on a day-to-day basis, by nursing staff and usually this is done by the Director of Nursing or a registered nurse. That supervision is necessary to ensure that meals are served to residents in accordance with their dietary requirements and according to the wellbeing of the resident on the day. Judgments about the latter are clearly matters for the nursing staff – hence the need for appropriate supervision of the plating of meals.
Meals – Preparation For and Clearing Of
64. Preparation of meals in each nursing home varies depending on the circumstances of the nursing home. In particular, where the meals are prepared off site the preparation is limited to preparing the previously cooked meals for plating and the plating of those meals.
65. The preparation of a meal also depends upon preparation of the dining room and trays for the serving of the meal.
66. We are satisfied that all of those preparation duties, including setting of tables, are properly characterised as domestic functions and not part of the nursing and personal care functions.
67. Less clear is the clearing up of a dining room and trays after a meal. It was put that supervision of the nutrition of residents included checking to ensure that meals have been consumed with particular attention and assistance where a resident is having trouble consuming the meal.
Linen etc – Sluicing
68. Sluicing of linen is, we are satisfied, properly distinguished from laundry of linen etc.
69. It is a normal experience in nursing homes, such as those before the Tribunal, that the residents may suffer incontinence episodes on a regular or irregular basis. Those episodes must be dealt with as they occur and cannot be the subject of a timetable or roster.
70. We are satisfied that episodes of incontinence, whenever occurring, are properly dealt with as part of the nursing and personal care function. Of necessity, the stripping of beds and the undressing/dressing and washing of residents is part of that function.
71. The difficulty is in determining when the nursing and personal care function ceases.
72. In Exhibit F, Margaret Cook, a registered nurse and Executive Director of Nursing, described sluicing as follows:
“Sluicing as it is called takes place in the nurses’ territory – the PAN ROOM where a specific area with a special water connection is available to flush the faecal matter away prior to the clothing or linen object going to the laundry. This procedure does not clean the object but removes the bulk of faecal matter just as emptying a bedpan in the PAN ROOM would remove the faeces if the faecal matter had been evacuated into the pan.
Following the involuntary evacuation of a Resident’s bowel a nurse would follow a process in which she/he would obtain water in a bowl and proceed to provide effective hygienic care to increase the Resident’s comfort and to prevent skin breakdown and infection.”
73. In the light of the material before us, we accept that to be an accurate summary of “sluicing” which also delineates the cut-off between nursing functions and laundry functions. What goes on in the Pan Room is nursing and personal care functions – what goes on in the laundry is not.
74. It is necessary that we find certain facts in relation to each nursing home because the respondent’s adjustments differ from nursing home to nursing home.
Redcliffe Nursing Home
75. Redcliffe is a 63 bed high care nursing home built in 1972 in a “H” format housing seven single and 28 two-bed residents’ rooms. Since 1989 it has had in-house laundry operations becoming fully in-house in 1991.
76. The applicant adopted a practice of employing non-nursing staff who were dressed as nurses but employed on domestic duties, such as the laundry, and cleaning but no nursing duties. We are satisfied that the applicant deliberately misrepresented the duties undertaken by these employees as it also sought to do by amending the roster and payroll details of other employees. No domestic staff were employed on the evening and night shifts.
77. All laundry work after 6 pm was performed by nursing staff. It seems that there was insufficient linen supplies for the dirty linen to be left for the laundress the next day. It was both a necessity and an established practice for evening shift and night shift nursing staff to do laundry work on their respective shifts. Those nursing staff were also directed to do cleaning work other than emergency cleaning.
78. Setting of tables and buttering of bread for breakfast was also done by evening or night shift nursing staff as was collecting, washing and replenishing water jugs in residents’ rooms until 1997. After 1997, the water jugs were done by morning shift nurses.
79. Delivery of meals to the residents’ rooms, as required, was performed by nursing staff who collected the plated meals from the kitchen and delivered to the residents where they assisted residents with eating as required. Insofar as there was monitoring of residents’ intake of food, we are satisfied that this was done by the registered nurses, albeit sometimes after advice from an AIN.
80. Morning and afternoon teas were delivered from the kitchen to the residents by nursing staff. This duty included pouring tea. It also included assisting residents as needed with taking the morning and afternoon teas.
Rothwell Nursing Home
81. Rothwell is a 60 bed high care nursing home built in 1989. The building is square with a central courtyard with six single bed, five two-beds and 11 four-beds rooms.
82. The applicant has sought to represent that personal care staff and other domestic staff were employed for part of each shift on nursing and personal care functions. We are satisfied, on the balance of probabilities, that those staff were not so employed and only did domestic duties on their shifts. We are also satisfied that no domestic staff were rostered for the evening and night shifts. In particular, we are satisfied that the laundress ceased her work at 2 pm and after that laundry work was performed by nursing staff – there not being enough linen to allow dirty linen to be held over to the next day. The nursing staff at this home were also required to wash kylies for the same reason.
83. There was a daily routine of water jugs and glasses being collected by nursing staff and taken to the kitchen where they were washed and replenished by domestic staff. The nursing staff then returned the jugs and glasses to residents’ rooms.
84. Morning and afternoon teas were put onto trolleys by domestic staff but then delivered to residents by four nursing staff who did the pouring of tea and coffee and who were also responsible for collection and return to the kitchen of the used cups etc.
85. Meals were plated by registered nurses but delivery either in the dining room or to the residents’ rooms was undertaken by AIN’s. It appears that most residents had their meals in the dining room with nursing staff clearing the tables after the meal but domestic staff cleaning the tables and the floor. Washing of dishes was done by domestic staff except after the evening meal when nursing staff washed the residents’ plates etc.
86. Suppers were prepared and delivered by nursing staff, there being no domestic staff employed on the evening shift. The night shift staff set the tables for breakfast and made sandwiches which were delivered to residents with their early morning tea – a function performed by nursing staff.
87. Cleaning was done by the cleaner who denied doing nursing and personal care duties. It seems that extra cleaning was done by nursing staff in other than emergency situations.
Peninsula Nursing Home
88. Peninsula is an 80 beds high care nursing home built in 1991, square-shaped but with a central dining room creating two courtyards. There are ten single-bed rooms, 11 two-bed rooms and 12 four-beds rooms.
89. Peninsula has a kitchen facility which cooks meals for the residents at Redcliffe, Rothwell and Peninsula. The Tribunal understands that Redcliffe is approximately two kilometres from Peninsula and Rothwell is approximately six kilometres from Peninsula.
90. Plating and delivery of meals at Peninsula was undertaken by the nursing staff who were also responsible for collection of dirty plates and return to kitchen. Those functions were performed by nursing staff in the dining room and the wings.
91. Similarly, loaded morning and afternoon tea trolleys were collected from the kitchen by AIN’s who delivered and served the morning and afternoon teas and subsequently returned the used cups etc to the kitchen.
92. Collection, washing and return of water jugs to residents’ rooms was performed daily by nursing staff.
93. It seems that laundry functions at Peninsula were performed by staff engaged to do laundry/cleaning duties. Insofar as the applicant has asserted that these staff also performed nursing and personal care duties, we are satisfied that was not the case and the assertion was not supported by the evidence.
Mount Coolum Nursing Home and Hostel
94. This is a 40 beds high care nursing home, square shaped with central dining room consisting of 28 single and six two-bed rooms. The hostel is a high/low care facility including a 20 dementia specified secure unit consisting of four oblong buildings each with 20 one-bed rooms.
95. The nursing home kitchen cooks for the residents of the nursing home and the hostel. Contaminated linen from the hostel is laundered in the nursing home laundry. Other hostel laundry is processed on site at each unit with some residents being self-sufficient with their personal laundry.
96. Operations at these homes were conducted in a manner more consistent with the Principles and Circulars so as to obtain a better demarcation between CAM and SAM expenditure.
97. AINs provided assistance to domestic staff in delivery of meals in the dining room and the wings. The AINs then collected and cleared used plates etc from the wings and the tables in the dining room.
98. The AINs also delivered and served morning and afternoon teas prepared by domestic staff, who also participated in the delivery and service, and placed on trolleys at the kitchen.
99. In the course of delivering meals and morning and afternoon teas, the AINs would assist with feeding of residents as required.
Scarborough Nursing Home
100. This is a 30 bed nursing home, not purpose built and closed in 1996. The nursing home did its own cooking of meals and its own laundry from 1989 (the laundry having previously been done externally).
101. The nursing home comprised two converted residential houses. The smaller of the two housed approximately 10 residents and the kitchen. The larger unit was a split level house with three functional areas with approximately 20 residents divided across those three areas. Because of the layout and features of each building, trays were used in preference to trolleys for delivery of meals and morning and afternoon teas to residents’ rooms. The nursing home did not have a dining room.
102. We accept that the applicant adopted the practice at this home of employing domestic staff dressed in nurses uniforms to do domestic work but said to be AINs doing nursing and personal care work. We are unable to quantify the amount involved.
103. Service of meals, suppers and morning and afternoon teas was, of necessity, taken to the residents’ rooms and was done by the nursing staff. Preparation of trays was also done by nursing staff and the respondent has adjusted for this aspect only. In the circumstances of the nursing home this is understandable but does not, in our view, justify an acceptance that nursing staff time in “running the trays” is thereby nursing and personal care.
104. Water jugs and glasses were collected, washed and replenished by nursing staff on the evening/night shift.
105. We are satisfied that the laundry facilities at Scarborough were not of a standard expected of a nursing home and as described to us would hardly be acceptable in private domestic premises. There was a constancy of laundering dirty linen by the nursing staff on the evening and night shifts. That work included hanging laundry on clotheslines to dry rather than use dryers. There was no sluicing room at Scarborough so that the sluicing was part of the laundry function.
106. Rosters of staff to be employed for the next fortnight were prepared in respect of each nursing home. Discrete rosters were prepared for registered nurses, enrolled nurses, AINs and domestic staff.
107. The rosters were the basis for preparation of time sheets for work performed by each staff member with the rosters and time sheets being reconciled each fortnight and then forming the factual base for payroll, that is, staff were to be paid for hours actually worked.
108. It will be apparent that the reconciled rosters and time sheets would have also formed the factual base for calculation of actual expenditure for the provision of nursing and personal care but only to the extent that nursing staff were performing nursing and personal care duties. It is apparent that the latter qualification was not given effect and an assumption or decision was made to the effect that nursing staff were to be deemed to have been performing nursing and personal care duties only.
109. It is apparent on the evidence before us, that there was also a conscious decision, by the applicant’s controlling minds, to claim actual expenditure for nursing and personal duties in respect of payments of salary to domestic staff.
110. To give effect to this blatantly dishonest claim in respect of salaries of domestic staff, significant alterations were made to rosters and time sheets in a retrospective attempt to reconcile them with payroll records. Those alterations were made retrospectively and without regard to the factual circumstances of work performed by those staff members.
111. So much is apparent from the material before the Tribunal and has not been explained to be anything other than what is apparent on the face of the documents. In this regard we have given particular weight to the evidence of Ms Mellor who was, in our view, a frank witness and whose evidence is, in our view, the best explanation of the material before the Tribunal.
112. Part of the deception attempted was to show domestic staff as being employed as AINs or to show those staff as being employed on nursing and personal care (“CAM”) duties for part of their employed time. Ms Mellor’s evidence in this regard is generally consistent with the evidence of witnesses who gave evidence about their personal employment by one of the subject nursing homes and is, in our view, corroborated by that evidence of the individual staff members.
Evidence of the Validators
113. We mean no disrespect when we say that we have found much of the evidence of the validators unhelpful in coming to a decision. That is because we are required to investigate what actually happened at each nursing home in relation to the NPC costs. The validators relied on what they were told in circumstances where some of what they were told was less than frank when compared with the evidence before us.
114. The process of validation would commonly be referred to as an audit. The validators attended the respective homes, inspected records and interviewed employees. The process seeks to establish the correct amount of CAM funding, that it was being used for nursing and personal care functions of the nursing home and that it was not being used to supplement SAM funding by being used to cover infrastructure costs intended to be covered by SAM funding. In the ultimate, the validators are required to determine the demarcations between CAM and SAM functions in accordance with the legislation and, more particularly, in accordance with the Principles which set out the prescribed policy and the circulars which set out the department’s published official policy.
115. We are satisfied they performed their functions at each validation with integrity and sought to establish the true circumstance in each case. It is clear to us that the applicant, through its officers, sought to mislead the validators and succeeded in doing so as to certain aspects. We have come to that conclusion because of the attempt to reconcile the rosters and time sheets with the payroll records and the inconsistencies in what was said to the validators, subsequently said to the Police, and said in evidence before us. No useful purpose will be served in exploring these inconsistencies but we have drawn attention to them to explain why we have given less weight to the interview reports prepared by the validators and more weight to the signed statements, and oral evidence of the applicant’s employees. Evidence which the applicant only sought to counter in a limited way.
Consideration
116. The issues clearly revolve around the extent to which outgoings in the way of employment of staff in the respective nursing homes are properly characterised as nursing and personal care as defined. The definition is in plain words and those words need to be construed according to their ordinary meaning but in the context of nursing homes established for the care of the frail and elderly.
117. It would not be appropriate to assimilate nursing and personal care, as defined, with nursing care in, for example, public hospitals. Nor would it be appropriate to somehow try to assimilate nursing and personal care with care that might be given in private domestic circumstances. “Nursing and personal care” is to be construed in the context of the care provided to residents of nursing homes for the frail and elderly.
118. While we accept that much of what occurs in a nursing home can be construed as being for the purpose of caring for the residents, it is clear on the authorities that to adopt such a broad brush construction of “nursing and personal care” would be incorrect.
119. The definition contains important qualifications. While “nursing care” is unqualified as to the meaning of those words, it is confined to nursing care to an approved patient by nursing and personal care staff.
120. “Other care” is qualified in two important aspects. It is also confined to care provided to an approved patient by nursing and personal care staff but unlike “nursing care” the word “personally” qualifies “approved patient” so that the defined meaning is confined to care involving direct interaction with or assistance to the resident (Seventh Mingcourt Pty Ltd v Lawrence (1996) 40 ALD 603 at 612-3).
121. Taking the above into consideration, we are satisfied that while nursing staff may perform duties that are not CAM duties the corollary does not apply, that is, that domestic staff can perform duties which bring them within the definition of nursing and personal care. The reason is that the domestic staff are not nursing and personal staff and are therefore any duties performed are not within the definition, irrespective of the nature of duties actually performed.
122. If nursing and personal care staff perform duties that are not properly characterised as nursing and personal care, then time spent on those duties is not CAM expenditure.
123. We accept, as did the Tribunal in Re Tricare (Annerley) Pty Ltd and Minister for Health and Family Services [2001] AATA 653 that, in the characterisation of duties where an employee is required to perform both nursing and personal care duties and duties that are not so characterised, there has to be an arbitrary assessment of the time on non-NPC duties. In particular, we are satisfied that duties vary in time taken from shift to shift – several witnesses said no two shifts (or days) were the same. To correctly characterise time taken on each shift for the mix of duties would require an extraordinarily complex assessment which could not be justified. Quantification of time, in these circumstances, must therefore be a best estimate, on the basis of the material and so as to achieve a reasonable apportionment between CAM and SAM expenditure.
124. We have been unable to come to any precise conclusions about the quantification of the adjustments made by the decisions under review in the two validation periods. Notwithstanding that, we have a clear impression from consideration of the material that the adjustments are generous, being favourable to the applicant, because uncertainties have been resolved in favour of the applicant.
125. In forming our impression we have not accepted that the applicant’s domestic staff performed nursing and personal care functions to any significant extent. Clearly the emphasis was on the corollary, that is, that nursing and personal care staff were required to perform domestic duties intended to be reimbursed by the SAM payment per approved resident.
126. In particular we do not accept that the collection washing and replenishment of water jugs as a routine daily task is in the character of nursing and personal care. The claim that the monitoring of hydration was related to this task was refuted by several witnesses who said, inter alia, that no record was made of the state of a resident’s jug when it was collected for washing. We would accept that a response by a nurse to a particular empty jug would be part of nursing and personal care because the emptying of the jug may raise issues of resident care besides the obvious one of the need for replenishment to maintain hydration.
127. To suggest that the routine collection etc of water jugs requires the same consideration by a nurse is not, in our view, a reasonable explanation for what is essentially a routine domestic task and should be characterised as such.
128. In relation to meals, including morning and afternoon teas and suppers, we do not accept that preparation, routine plating, delivery and collection and clearing away are functions that can properly be regarded as nursing and personal care.
129. Residents’ consumption of meals etc does raise issues of nursing and personal care in the supervision of the residents’ eating their meals and in specific intervention as required in the otherwise routine plating of meals. We accept that it was the normal practice for specific dietary requirements to be made known to domestic staff who took those requirements into account in preparing meals.
130. We also accept that where there is a need for particular intervention because of a resident having difficulties with eating, for whatever reason, or because the resident’s state of health on the day requires intervention, then that is clearly a nursing and personal care function and requiring the attention of the Director of Nursing or a registered nurse. We accept that those situations may arise on a day-to-day basis but that does not, in our view, alter the fact that the routine plating and delivery of meals is a domestic function and not a CAM function.
131. We do not accept that clearing a dining room after a meal, routine cleaning of rooms etc, mopping floors can be characterised other than as domestic functions covered by SAM funding. We do accept that the cleaning up after an episode of incontinence is part of nursing and personal care and outside of routine cleaning etc. We also accept that carbolising of beds by nursing staff, for whatever reason, is part of nursing and personal care, being an issue of infection control for individual residents.
132. We also accept that sluicing of soiled bed linen and clothes is part of the nursing and personal care function of nursing staff when dealing with episodes of incontinence.
133. We do not accept that sluicing of linen and clothes in conjunction with general laundry duties, whether performed by nursing staff or domestic staff, is part of nursing and personal care. The operations of the laundry form part of the infrastructure cost base of the nursing home. It is not to the point that no domestic staff have been rostered and/or there is insufficient linen. The essential character of the function is that of domestic duties.
134. As the Tribunal said in the Tricare case where nursing staff have to go to the laundry to obtain fresh linen, for the purpose of remaking a resident’s bed, they will be performing a nursing and personal care function. However, nursing staff who attended the laundry for the purpose of re-supplying the linen cupboards in the wings would not be performing a nursing and personal care function.
135. For these reasons we have decided to affirm the decisions under review. In doing so we have not been able to affirm the quantitative adjustments made in those decisions but as already indicated we have the strong impression that the adjustments are favourable to the applicant given the material before us.
I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe and Ms J Cowdroy, Member
Signed: Sarah Oliver
AssociateDate/s of Hearing 2 - 20 February 2004
Date of Decision 22 June 2004
Counsel for the Applicant Mr Horneman-Wren
Solicitor for the Applicant Macrossans Lawyers
Counsel for the Respondent Mr Eliadis
Solicitor for the Respondent Australian Government Solicitor
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