Southern Cross Care (Tas) Inc and Secretary, Department of Health and Ageing

[2014] AATA 623

[2014] AATA 623 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2970, 2013/2971, 2013/2972
Re	Southern Cross Care (Tas) Inc
APPLICANT
And	Secretary, Department of Health and Ageing
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member & Dr R Walters, Member
Date	2 September 2014
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Aged Care, classification level of care recipients for Commonwealth subsidy - palliative care program involving end of life care - medical directive - complex health care criteria not satisfied - decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (the AAT Act)

Aged Care Act 1997

REASONS FOR DECISION

Ms A F Cunningham, Senior Member & Dr R Walters, Member

REASONS FOR DECISION

1. The applicant is an approved provider for the provision of aged care facilities. This application for review concerns the level of Commonwealth subsidies paid for the provision of aged care with respect to three persons who were residents at the Mount Esk Aged Care Facility during the relevant period which was operated by the applicant.

2. The Tribunal issued a direction pursuant to section 35 (2) of the Administrative AppealsTribunal Act 1975 (the AAT Act) which prohibited the publication of the care recipients’ names and any information that could identify them. Accordingly the three residents will be identified as resident A, resident B and resident C.

   BACKGROUND

3. Each of the three residents underwent an Aged Care Assessment and were approved for residential care. Resident A was approved for permanent high level residential care and respite care on 26 June 2012 and after a period of respite care became a permanent resident on 28 September 2012. Resident B was approved for permanent low level care and respite and entered the applicant’s aged care facility on 6 September 2011.  Resident C entered the facility for high level care on 12 September 2013.

4. Aged Care Assessments cover the following three criteria:

   (a)activities of daily living,

   (b)behaviour, and

   (c)complex healthcare.

   Each of the criteria is given a rating of either High, Medium, Low or Nil. (H,M,L.N).

5. On 31 January 2013 delegates of the Secretary completed a review of classifications for the three residents which were revised as follows:

   Resident A from HMH to HML, resident B from HHH to HML and resident C from MHH to MHL. As a result of the reassessments, the review officers determined to vary the classification for each of the residents from high to low in respect of the domain category “complex healthcare” referred to in Schedule 2 of the Classification Principles 1997 (the Classification Intervals) made under subsection 96-1 (1) of the Aged Care Act 1997.

6. On 23 February 2013 the applicant wrote to the respondent requesting a reconsideration of the Aged Care Facility Instrument (ACFI) classifications for the three residents.  A reconsideration was conducted pursuant to subsection 85-5 (5) of the Act on 24 May 2013 and each of the ACFI classification decisions was confirmed.

7. The applicant seeks a review of the respondent’s decision by the AAT. The issue for the Tribunal to determine is whether or not the residents are classified as High for the domain category of “Complex Healthcare”.

   LEGISLATIVE FRAMEWORK

8. The payment of subsidies for the provision of aged care is provided for in the Aged CareAct 1997 and the principles made pursuant to section 96-1 of the Act. Chapter 3 contains the relevant provisions for the payment of Commonwealth subsidies to approved providers.

9. For residential care, the amount of “residential care subsidy” payable to an approved provider is worked out in accordance with the calculator set out in section 44-2 of the Act. The subsidy includes a component called the “basic subsidy amount” which is an amount determined by the Minister under subsection 44-3 (2). The Minister may determine different amounts based on the matters set out in subsection 44-3 (3). One of these matters is the “classification levels for care recipients being provided with residential care” (subsection 44-3 (3) (a)). The classification levels are referred to in section 25-2 subsection (1) of which provides:

   “The Classification Principles may set out the classification levels for care recipients being provided with residential care or flexible care”.

   The classification level determines the amount of subsidy to be paid to the Aged Care Provider in respect of the resident in recognition of the level of care being provided to that particular resident.

10. The Classification Principles 1997 were made pursuant to subsection 96-1 (1) of the Aged Care Act (the Act) and contain the procedures for determining classification levels. The appraisal procedure is set out in clause 9.17, subsection 2 of which provides that the person making the appraisal must complete an answer appraisal pack in accordance with the User Guide. The User Guide is known as the Aged Care Funding Instrument (ACFI) which is a resource allocation instrument assessing core care needs as the basis for allocating funding. The ACFI focuses on care needs related to day to day, high-frequency need for care to measure the average cost of care in longer stay environments. The three ACFI components of residential care subsidy are activities of daily living, behaviour supplement and complex healthcare supplement. It is the ACFI 12 complex health care supplement that is relevant to the current application.

11. The provisions with respect to the classification of care recipients are contained in Part 2.4 of the Act. Under section 25-1 of the Act,  the Secretary must classify a care recipient who was approved under Part 2.3 for residential care taking into account the appraisal made by the approved provider or other authorised person under section 25-3.  Under section 27-6 the Secretary may renew the classification of a care recipient and may change the classification level if satisfied that the classification was based on an incorrect or inaccurate appraisal or for any reason was made incorrectly (subsection 29-1 (1)). A reconsideration and review of the respondent’s decision was conducted pursuant to section 85-5 of the Act.

    ISSUES

12. The issues for the Tribunal to determine with respect to each of the three residents are:

    1. Were the criteria specified in ACFI 12-14 for a score of 10 satisfied? That is, at the time of the appraisal of the resident was there an assessment that identified a need for a palliative care program involving end of life care where the ongoing care would involve very intensive clinical nursing and/or complex pain management in the residential care setting?

    2. Does the letter signed by the general practitioner for the resident constitute a directive describing the complex healthcare procedure to be performed and the associated management and/or treatment plan required for a palliative care program involving end of life care for the resident?

    EVIDENCE

13. The T documents were tendered in evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

    On behalf of the applicant, oral evidence was given by Carolyn Jane Wallace, registered nurse and Director of Clinical Services with Southern Cross Care and by Rebecca Lee Eiszele, a registered nurse and Facility Manager of Mount Esk Aged Care, one of the applicant’s facilities.

14. It was Ms Wallace’s evidence that she has extensive practical knowledge of the application of the Aged Care Funding Instrument and has been involved in the training and education of staff of various categories in the application of the ACFI.  In her written statement of evidence Ms Wallace said at paragraph 14:

    “A palliative care program could and should be highly specific to each resident. The commencement time of such a programme will also be highly specific to each individual. For some residents a palliative program may commence several months before they die. Especially in residential aged care as most residents suffer from more than one significant disease process/diagnosis and a high level of frailty.”

    She went on to state that:

    “A person in the palliative phase of their life would require a clinical nursing intervention at least every one to 2 hours.”

15. It was Ms Wallace’s evidence that a palliative approach is adopted for most people entering residential care as between 50% and 60% of residents die within the first six months of admission. Ms Wallace agreed that palliative care involves end of life care being for the last few days or weeks of life.

16. Ms Eiszele is responsible for the day-to-day functioning of the Mount Esk Aged Care Facility. Ms Eiszele’s witness statement included a discussion of each of the three residents who are the subject of the assessments. She noted that resident A’s submission included a diagnosis of vascular dementia which she described as a life limiting illness and as such appropriate for a palliative care program. Resident B’s submission included a diagnosis of dementia, secondary to alcohol abuse which Ms Eiszele again stated is a life limiting illness and appropriate for a palliative care program. Similarly resident C who was also legally blind, was diagnosed with dementia.

17. Ms Eiszele said that although she had read parts of the Guidelines she was not familiar with the definition of palliative care in the Guidelines. Ms Eiszele accepted that there was no reference in the doctors’ directive that any of the three residents was suffering from a terminal illness. Ms Eiszele said that her reference to a palliative care program involved a life limiting illness. It was her evidence that she has heard the terms palliative care and palliative approach being used interchangeably and she did not really understand the distinction between the terms.

18. Dr Susan Hunt, Senior Nurse Adviser with the Department of Social Services in the Office of Aged Care Quality and Compliance, gave evidence on behalf of the respondent.

19. Dr Hunt was appointed Senior Nurse Adviser with the Department in 2007. As Senior Nurse Adviser Dr Hunt provides advice to the Department about the care of older people with respect to the quality and regulatory functions carried out by the Department. In 2011 Dr Hunt was appointed Adjunct Associate Professor with the Medical School at the Australian National University and the School of Nursing and Health Science with the University of South Australia. Dr Hunt is also a member of the Expert Reference Committee for the “Review and Update of Guidelines for a Palliative Approach in Residential Aged Care”, a project of the University of South Australia to provide advice to the Department on updating the Guidelines. An extract from the Guidelines was attached to Dr Hunt’s Statement of Evidence.

20. Dr Hunt’s Statement of Evidence contained an analysis of the issues arising with respect to item 14 of question 12 of the ACFI User Guide.  She stated that the ratings in question 12 relate to the technical complexity and frequency of the procedures which affects the amount of subsidy an aged care provider will receive for the care of its residents. At paragraph 19 Dr Hunt stated:

    “The score for item 14 is the highest score in question 12, meaning that an aged care facility whose delivery of care for a resident with a palliative care program involving end of life care where the ongoing care will involve very intensive clinical nursing and/or complex pain management… receives the highest subsidy available in the complex health care domain in recognition of the amount of clinical nursing necessary to be provided in this situation.”

21. Dr Hunt noted that the directives signed by the doctor in the subject case state that the care for the care recipient is to be a “palliative approach”. Dr Hunt referred to the Guidelines for a Palliative Approach in Residential Aged Care as a set of evidence-based Guidelines approved by the National Health and Medical Research Council. The Guidelines cite the World Health Organisation definition of “palliative care” as “An approach that improves the quality of life for individuals and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual.” The Guidelines state that:

    “A palliative approach aims to improve the quality of life for individuals with a life limiting illness.”

    And further that :

    “In considering palliative care for residents in RACFs [Residential Aged Care Facilities], it is important to distinguish between a palliative approach, specialised palliative care service provision and end of life (terminal) care…”

22. At paragraph 28 Dr Hunt stated:

    “When considering a palliative care program for end of life care, it can be seen using the NHMRC guidelines that it is accepted that a “palliative approach” in residential aged care is not “palliative care”. A palliative approach is not the care itself: it is actually an approach to care delivery rather than the care delivery.”

23. After examining the records of the Mount Esk facility, Dr Hunt concluded that each of the three residents were receiving the usual care expected to be provided in an aged care facility caring for frail aged people with dementia and other conditions which may include a palliative approach to care but not end of life care. Dr Hunt stated that if the directive was for end of life care as part of a palliative care program, she would expect to see a medical diagnosis or at least an assessment of the palliative end of life care which implies an end of life condition. She noted that in each of the three medical directives there is no mention of terminal care at the time of the ACFI claim and no direction or description of any intensive clinical nursing or complex pain management.

24. Dr Hunt explained that very intensive clinical nursing includes strategies that are frequent and/or labour intensive for instance, half hour to 1 hour turning (repositioning), attention to skin or mouth care every hour, administration of pain relief and sometimes oxygen therapy. Dr Hunt said that she would also expect to see descriptions of complex pain management. Dr Hunt noted that none of the three directives referred to included any reference to a current terminal condition or any description of physical deterioration or intensive clinical nursing.

25. Dr Hunt’s Statement of Evidence contained an analysis of the records of each of the three residents.  She concluded that in each case the records demonstrate that there was no medical directive or a care plan that the resident required at the time of the appraisal, a palliative care program for end of life care involving complex or specialist nursing or complex pain management. In her opinion, the records did not indicate that any of the three residents were terminally ill at the time of the assessment.

26. Dr Hunt disagreed that dementia could be classified as a terminal illness noting that there are a number of people with dementia who are able to live quite good lives for a number of years. Dr Hunt agreed that dementia is life limiting in the sense that it limits a person’s scope and quality of life but is not necessarily a life ending condition. She stated that people do not generally die as a result of having dementia but from the complications that arise from the disease.

    CONSIDERATION AND FINDINGS

27. The reviewable decision made on 24 May 2013 pursuant to section 85-5 of the Act confirmed each of the ACFI classifications assigned following reviews.

28. Under section 9.3 B of the Classification Principles, the rating for the two questions in the ‘complex healthcare domain’, namely questions 11 and 12, is used to determine the “domain score” which in turn is used to determine the “domain category” (nil, low medium, high) and combined with the other two domain categories, the classification level for the resident. The classification level determines the amount of subsidy to be paid to the applicant in respect of the resident in recognition of the level of care being provided to that particular resident.

29. The question for the Tribunal to determine is whether the assessments conducted for ACFI 12 complex health care, were correct. This involves a determination as to whether at the time of the appraisal of each of the residents, there was an assessment of the resident that identified a need for a palliative care program involving end of life care where the ongoing care would involve very intensive clinical nursing and/or complex pain management in the residential care setting.

30. The requirement under the table for ACFI 12 is that there be a directive by either a clinical nurse consultant or clinical nurse specialist in pain or palliative care or a medical practitioner and a pain assessment. The directives relied upon by the applicant for each of the three residents are contained at pages 158, 198 and 220 of the T documents and comprise letters from medical practitioners, namely Dr Paul Hanson for residents B and C and Dr Jean Phillips for resident A. The content of each of the three letters (directives) is similar in form and does not appear to be patient specific.  They are directed to the nursing staff of the Mount Esk Aged Care Facility Re-Palliative Approach commencing with the words:

    “The above resident now has a directive for a palliative approach to their ongoing care. This means that I no longer require: routine weights, routine observations, and routine urinalysis. In the event that the resident becomes symptomatic of a UTI then a urinalysis would be warranted. When their care becomes terminal I request that regular analgesics/sedatives be administered to ensure the highest quality of end-stage comfort”.

    With respect to resident A an additional instruction was inserted stating:

    “ Please note that this resident is not for active resuscitation.”

31. It is contended by the respondent that these three letters signed by medical practitioners do not constitute directives as defined by ACFI 12 which states:

    “A medical practitioner directive refers to a medical directive by a general or a specialist medical practitioner or a consultant physician that describes the complex healthcare procedure to be performed and the associated management and/or treatment plan.”

32. The description of complex health care for ACFI 12 states that this question relates to the assessed need for ongoing complex health-care procedures and activities and excludes temporary nursing interventions. Further that the ratings relate to the technical complexity and frequency of the procedures. The description goes on to state that only the stated procedures or health-care needs that have been identified in a directive are taken into account. The procedure required in relation to usual care needs should be identified and the frequency of the procedure recorded. Where a minimum frequency is specified as at least weekly and a frequency is less than this, it is not taken into account in calculating a rating.

33. It is contended by the respondent that the directives relied upon by the applicant do not satisfy the above requirements in that they fail to identify any required procedures or their frequency and there is no reference to a complex pain management. Instead the letters state what the doctor no longer requires by way of routine weights, observations and urinalysis. Nor, it is submitted, is there any evidence that any of the residents had been diagnosed with a terminal illness requiring a palliative care program. The letters instead refer to a “palliative approach” and state that when care becomes terminal, regular analgesia/sedatives should be administered to ensure highest quality of end-stage comfort.

34. The medical diagnosis for each of the three residents was dementia with some associated complications. It was Dr Hunt’s evidence that dementia is not regarded as a terminal illness and that death is generally the result of medical complications that arise as a result of dementia. Dr Hunt referred the Tribunal to the World Health Organisation’s definition of palliative care which has been adopted by the guidelines and refers to:

    “an approach that improves the quality of life of individuals and their families facing the problem associated with life threatening illness…”

    On the other hand a palliative approach is stated “to improve the quality of life for individuals with a life limiting illness and their families…” At Chapter 2 the Guidelines state that:

    “In considering palliative care for residents in RACFS, it is important to distinguish between a palliative approach, specialised palliative care service provision and end of life (terminal) care. The distinction among these forms of palliative care is important in care planning and clarifying the goals for treatment of the residents”.

1. ACFI 12 in question 14 specifically refers to a palliative care program involving end of life care. It was Dr Hunt’s evidence that the end of life stage means the last hours, days or sometimes weeks of a person’s life. Dr Hunt’s evidence is confirmed by the National Palliative Care Program Guidelines extracts of which were tendered in evidence and where it is stated at page 162:

   “End of life care refers to the phase where death may be expected within a period of hours to several days”.

   The Tribunal prefers the evidence of Dr Hunt who is well qualified and experienced in the aged care domain to the opinion evidence of the witnesses called on behalf of the applicant.

2. Mr Zeeman urged the Tribunal not to adopt a restrictive interpretation with respect to the distinction between palliative care and palliative approach. He argued that as these terms are not defined in the Act, a practical and pragmatic approach should be adopted. He contended that the respondent’s submission that a palliative care program requires end of life care that is, for the last few hours or days of a resident’s life, is a restricted interpretation of the phrase and would require an assessment by the aged care facility that a resident was in the final hours or days of their life before an application for the increased subsidy could be made. Mr Zeeman submitted there is little to distinguish the terms palliative care and palliative approach and contended that all of the three residents had life limiting illnesses. Mr Zeeman referred the Tribunal to the cover page of the guidelines tendered in evidence were it is stated:

   “palliative care - quality of life for people with a life limiting illness, their families and carers”.

3. The Tribunal can understand how these two phrases which both include the word “palliative”, may be used interchangeably by persons working within the aged care industry. However the words in ACFI 12 at item 14 specifically contemplate a program which involves end of life care and an intensive clinical nursing and/or complex pain management program. These procedures require a directive as well as a pain assessment describing the complex healthcare procedure to be performed. The Tribunal accepts the respondent’s submission that the term “palliative care” program appearing in ACFI 12 item 14 contemplates care recipients who are in a terminally ill stage.

4. Upon satisfaction of the requirements for item 14 which attracts a score of 10 points, an aged care facility would be entitled to the highest subsidy available in the complex healthcare domain in recognition of the high level of clinical nursing care required for a particular resident. On the other hand a palliative approach may be adopted for a resident who has a life limiting condition in the sense of a reduction in their quality of life but who may continue to live with the condition for a number of months or even years.

5. Dr Hunt examined the medical records of each of the three residents and said that she was unable to discern that any of the residents suffered a life threatening illness. There was no assessment that any of the three residents were in the end of life stage. In her opinion, the three letters signed by the doctors instead indicated that this was not the case for in each letter the doctor used the words:

   “when their care becomes terminal I request… to ensure the highest quality of end stage comfort”.

   The letters each refer to a palliative approach and there is no assessment of the need for palliative care involving end of life care. No terminal illness is identified nor is there any indication of lifespan or an end of life stage. In Dr Hunt’s opinion, based on the facility’s own records, each resident was receiving the type of care expected to be provided in an aged care facility for frail aged people suffering from dementia and other conditions which may include a palliative approach but not necessarily end of life care.

6. In conclusion and for the above stated reasons the Tribunal is not satisfied that the criteria specified in the ACFI 12 item 14 for a score of 10 are met. There was no assessment that identified a need for a palliative care program involving end of life care where the ongoing care would involve very intensive clinical nursing and/or complex pain management in the residential care setting. Nor do the three letters submitted by the applicant and signed by medical practitioners for a palliative approach constitute directives as described in ACFI 12 complex healthcare.

   The decision under review is accordingly affirmed.

   I certify that the preceding 40 (forty) paragraphs

   are a true copy of the reasons for the decision

   herein of Ms A F Cunningham, Senior Member

   and Dr R Walters, Member

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   Administrative Assistant

   Dated

Date(s) of hearing	27 & 28 May 2014
Counsel for the Applicant	Mr Phillip Zeeman
Counsel for the Respondent	Ms Kathleen Foley
Solicitors for the Respondent	Ms Kim Robbins