Sundale Garden Village and Department of Health and Aged Care - [2002] AATA 386

DECISION AND REASONS FOR DECISION [2002] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q2001/771

GENERAL ADMINISTRATIVE DIVISION         )
           Re      SUNDALE GARDEN VILLAGE, NAMBOUR
  Applicant
           And    SECRETARY, DEPARTMENT OF HEALTH AND AGED CARE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date24 May 2002
PlaceBrisbane

Decision The decision of the delegate of the Department of Health and Aged Care dated 27 July 2001 is affirmed.

……(Sgnd)…….
J Cowdroy
Member

CATCHWORDS
AGED CARE – subsidy payable by residents – classification of care recipients

Aged Care Act 1997
Therapeutic Goods Act 1989

Health (Drugs and Poisons) Regulations 1996 (Qld)

REASONS FOR DECISION

24 May 2002 Ms J Cowdroy, Member

HEARING:

The matter was heard on 27 February 2002. Mr Jarrett of Counsel, appeared on instructions from Butler McDermott and Egan. Mr P O'Higgins of Blake Dawson Waldron appeared on behalf of the respondent. The Tribunal had before it the Section 137 documents (E1), and various other documents were tendered, which formed E2-E8. Ms K Readman gave evidence for the applicant and both parties provided written and oral submissions.
BACKGROUND TO THE APPLICATION:
Sundale Garden Village, as a provider of residential aged care, receives subsidies for the residents in their care. The subsidy payable in respect of a resident depends on a number of factors, including the classification level of the recipient being provided with care. The classification of care recipients is based on the level of care that they require. The processes for the classification of care recipients is set out in the Aged Care Act 1997 ("the Act").
Mr B Hingston, (a care recipient), who is resident at Sundale Garden Village, had been assessed at classification 1. A review of resident classification levels at Sundale Garden Village was carried out from 27 to 29 March 2001, following which it was determined to change the level of classification for Mr Hingston from level 1 to level 2. Classification 2 attracts a lower level of subsidy than classification 1. The applicant was notified of this decision by letter dated 3 April 2001.
Following a request for reconsideration of that decision, pursuant to Section 85-5 of the Act, the respondent reconsidered the decision, and, by letter dated 27 July 2001, confirmed the original decision. The application for review of this decision was lodged by the applicant on 24 August 2001.
APPLICANT'S CASE:
Evidence of Ms K Readman
Ms K Readman, the Director of Care at Sundale Garden Village, ("Sundale"), had provided an affidavit that was admitted as E2. It sets out the manner in which a recipient of care is assessed for the purpose of payment of subsidy. With staff assistance, she is responsible for the provision of care to residents, in accordance with their individual care plan.
Upon admission of a new resident to the high care facility of Sundale, that person is allocated a classification under subsection 25-1(1) of the Act. Under section 25-2 of the Act, the classification levels are to be set out in the Principles. Section 9 of the Principles establishes the classification levels and it also sets out the process by which a care recipient's classification is determined. The classification levels and the process for their determination are collectively known as "RCS".
In this connection, Ms Readman is responsible for the completion of a Resident's Care Scale Worksheet. This document takes into account the type of care required by the resident in a number of areas as well as conferences between care staff, the resident and family members.
As part of the classification process, a care provider is required to answer twenty questions that are designed to assess the extent of care, assistance or support required by the care recipient. Each question has four ratings, A-D. A rating of A equates with the lowest level of care need, whereas a rating of D equates to the highest level of care need. Part of the information which is used in preparing that document is derived from a podiatrist, who examines each resident and develops a care plan.
Mr Benjamin Hingston was admitted to the high care facility of Sundale on 6 January 2001 and was assessed by Mr Ian White, podiatrist on 17 January 2001. A podiatry assessment form was completed, as well as a care plan. In completing Question 20 of the RCS in respect to Mr Hingston, Ms Readman allocated a D rating on the basis of the information provided by the podiatrist, including the care plan. A rating of D was allocated on the basis that Mr Hingston was to have the daily application of Daktarin Tincture to the nails of both feet in order to control oncychomycosis.
Upon completion of the RCS for Mr Hingston, it was lodged with the Department of Health and Aged Care ("the respondent") on 19 February 2001. Based on that information, Mr Hingston was allocated a classification of 1.
Annexed to Ms Readman's affidavit were care plans for Ms A M May, Ms G H Crothers and Ms S Brown, each of whom were residents at the high care facility and each had treatment similar to that recommended for Mr Hingston. In each instance, a rating of D was allocated and in a 1999 validation exercise, those ratings were confirmed.
During a review carried out in late March 2001, Ms Marion Smith, CNO, visited Sundale Garden Village to review the material on which the classification of care recipients was based. She scrutinised a number of residents' files and a decision was made on to change the classification level from 1 to classification level 2 for Mr Hingston. The change in classification occurred as a result of a change in the rating from D to A for Question 20.
The Tribunal was informed that, upon querying the reasoning behind the change, Ms Readman was informed by the review officer that the downgrading was attributable to a policy that podiatry treatment needed to be of 30 minutes duration to warrant a D rating.
The witness stated that the documentation manual in relation to classification procedures, which provides information to persons on how to complete RCS documentation, makes no reference to a requirement that treatment needed to be of 30 minutes and that she was then advised to consult the Internet. No specific information was located, however Ms Readman located a questions and answers section. In respect to podiatry services, it stated that if the service was of an extensive nature and was provided on a daily basis, it would rate a "D" in Question 20. It stated that interventions which totalled less than 30 minutes per day would not be considered extensive support. It also stated that a gel used in the treatment of arthritis, could not be considered under Question 17 (medication) as it was not a prescribed medication. The question and answer about medication has since been deleted from the Internet.
Ms Readman had always assessed podiatry care in Question 20, as it was her understanding that Question 17 referred to 'prescribed medication' only. Consequently the application or Daktarin Tincture, which is an over-the-counter medication, she believed was not encompassed by Question 17.
APPLICANT'S SUBMISSIONS:
16. The applicant contended that the daily application of Daktarin Tincture to Mr Hingston's toenails is encompassed by Question 20. It was pointed out that Question 20 refers to "other services", and relates to services "other than those covered in Questions 1 to 19. In the appraisal procedures at T3.34, the services said to be covered by the term "other services" included, but are not restricted to services provided by, amongst others, a podiatrist.
The applicant also submitted that the respondent had received claims of a similar nature made in respect of care recipients with similar needs. Those other care recipients, in respect of whom documentation had been provided to the Tribunal, had been allocated a rating of D and it was contended that this was consistent with established practice. None of the other care recipients had had the rating of D changed.
In March of 2001, a review was conducted by way of a random sample of the claims. It was during that review, that Ms M Smith reviewed the claim for Mr Hingston, which had previously been assessed as attracting classification 1 and a decision was made to change his rating to classification 2. This resulted in less by way of subsidy in respect of Mr Hingston's care.
It was also contended that by reference to the classification principles, nowhere was it stated that any particular period of time is necessary to attract a rating of D. Rather, the rating is assessed by reference to the nature of the service and the frequency with which it is provided.
The Tribunal's attention was drawn to the review carried out of Mr Hingston's classification (T7), in which Question 20 was allocated A, on the basis that the guidelines stipulate that this Question relates to services other than those covered in Questions 1 to 19. It disputed the respondent's contention that the application of Daktarin Tincture is appropriately dealt with in Question 17.
In the applicant's submission, the reasoning given for the change in Mr Hingston's classification has changed over time. Firstly, it was suggested that the service, did not rate a rating of D under Question 20 because it did not meet the 30 minutes test, and more recently, the respondent's attitude was that the application of the Tincture is more appropriately classed as the application of medication which falls outside the purview of Question 20.
The applicant conceded that if the application of Daktarin Tincture is "prescribed medication", then it should properly be dealt with in Question 17. However, it contends that such application does not meet the description of administering or applying "prescribed medication".
The Tribunal was referred to the Queensland Health (Drugs and Poisons) Regulations 1996 which sets out the regime whereby prescribed drugs are prescribed and administered (E8). The regulations draw a distinction between prescribing and administering. The term "administer" means "give a single treatment of a dose of a drug or poison". The respondent had contended, and the applicant accepts that Daktarin is an S2 drug, which is available over the counter from chemists without prescription.
Question 17 refers to "medication(s) administered on a regular basis". It was submitted that this section is replete with references to "prescribed medication". It does not encompass, and is not directed at medication that is sold "over the counter". By way of example, there is reference to "prescribed eye and ear drops", and "other topically applied prescribed medication(s) and rectally or vaginally administered prescribed medication(s)". The overall thrust of Question 17 is that it relates to "prescribed medication" even though the term "medication" is used on occasions without the prefix "prescribed".
RESPONDENT'S SUBMISSIONS:
The respondent contends that the decision to change the rating of D to a rating of A for RCS Question 20 should be affirmed.
A rating of D is warranted where extensive support is provided. A rating of A is warranted where there is "no support" required. The respondent conceded that if the Tribunal determines that the daily application of Daktarin Tincture is encompassed within Question 20, rather than another question, then a rating of D for Question 20 is the appropriate rating.
The respondent further conceded that, generally, services provided by a podiatrist fall within Question 20. However, if the service provided by a podiatrist or other professional covered by the question is more appropriately dealt with in one of Questions 1 to 19, then that is where the assessment should fall and, it is therefore excluded from Question 20.
The respondent pointed out that the daily application of Daktarin Tincture is carried out by nursing staff and not a podiatrist. Accordingly rating D is not applicable for Question 20. The respondent contends that the service under discussion falls within Question 17, or in the alternative, within Question 18.
In respect to the applicant's submission that similar podiatry treatments for other patients have been accepted as warranting a rating of D, it was pointed out that whilst consistency of approach is desirable, ultimately the fact that similar ratings were given to other patients and accepted by the respondent as being appropriately made, cannot assist the Tribunal in its deliberation as to what is the correct or preferable decision.
It was contended that Question 20 fits the description of somewhat of a "catch all" question, in that if the service (or care) fits within any of Questions 1 to 19; then it is appropriate that the service is assessed within Question 1 to 19. It was pointed out that the classification scale is not designed to cover every single aspect of care.
The Tribunal's attention was directed to Question 17 which at T3-27 states: "This question refers to medication(s) administered on a regular basis". The word "medication(s)" is not prefixed by the word "prescribed" and therefore the section refers to both prescribed medication and medication that is not prescribed. It was pointed out that the term "medication" is not defined in the Act or the Classification Principles, however the respondent contends that it means a "therapeutic product that is intended to achieve its action by pharmacological, chemical, immunological or metabolic means in or on the body of a person…". The definition is derived from the Therapeutic Goods Act 1989 (Cth).
32. Daktarin Tincture is a Schedule 2 poison and is for therapeutic use. It can take the form of a prescribed medication, in that a medical practitioner prescribes it, or it can be purchased over the counter. Schedule 2 poisons are substantially safe in use and can be used to treat minor ailments or symptoms that can be easily recognised by a consumer and do not require medical diagnosis or management. The issue cannot be resolved simply by an argument on the part of the applicant that the medication referred to in Question 17 refers solely to "prescribed medication" – rather the issue is resolved by reference to the level of care, support and assistance that is provided to the care recipient by the care provider.
In was pointed out that the categories of care in Question 17 reflect the increasing levels:

"Rating A is warranted when no assistance is required: the recipient self manages medication
Rating B is warranted where some assistance is required: staff are required to give medication, the recipient takes the medication and staff confirm that the medication has been ingested
Rating C is warranted when major assistance is required: staff are required to administer and assist with the taking of prescribed medication, or where the recipient is resistant to medication administration and staff are required to give significant encouragement
Rating D is warranted when complete assistance is required: daily administration of a controlled drug or subcutaneous, intramuscular or intravenous drug daily"

Ratings A and B do not mention prescribed medication whereas C does. Rating D is concerned with the next level medication, namely a "controlled drug" which is a Schedule 8 drug. Because Schedule 8 drugs are drugs of dependence there are stringent statutory requirements for the prescribing, storage and usage of the drugs and these requirements reflect the concerns held that the use of such drugs should be strictly controlled and monitored.
Although Question 17 is not consistent in its use of the word "prescribed" the respondent argued that the intent of Question 17 is to encompass the administration of medication, irrespective of whether it is prescribed by a medical practitioner. Support for that contention is said to be found in the fact that Question 20 includes "the application of transdermal medication patches". That term is not confined to "prescribed transdermal medication patches" and there is no reason it ought to do so. The use of nicotine patches in order to combat nicotine dependence is an example of a "medication patch" which is an over the counter preparation.
Essentially it was contended that the application of Daktarin Tincture to Mr Hingston's toes fits the description "the administration of a medication on a regular basis" and so falls within the parameters of Question 20. Whilst acknowledging there is inconsistent use of the word "prescribed", the residential care manual (RCM), which is the source document, prepared by the respondent for use in the management and staff of residential care facilities, also is inconsistent in that aspect. Despite this, it was contended that the intention is clear: the use of staff time and effort in assisting the care recipient to apply medication is the key factor in attributing a rating to Question 17 and not whether the medication has been prescribed by a health professional.
37. In the alternative, the respondent contends that the application of Daktarin can properly be considered under Question 18 of the RCS. That question relates to "technical and complex nursing procedures". It sets out a range of procedures, which, whilst not exhaustive, are indicative of the kinds of procedures that are to be included in that question. Relevant examples include:

Maintenance of skin integrity;
Eye care, other than eye drops which are covered in Question 17;
Oral hygiene (excluding teeth which is covered in Question 4);
Simple wound dressings.

In this context, the respondent argued that the application of Daktarin Tincture can be described as a "procedure". It is analogous to a simple wound dressing or to the maintenance of skin integrity.
DECISION:
39. There is no dispute between the parties as to the factual background leading to the application to the Tribunal. The sole issue is the interpretation which is to be given to certain questions contained in the RCS. In reaching a conclusion on this matter, I was not assisted by information about what has been past practice nor the information conveyed to Ms Readman, either through oral advice or via the Internet. It is regrettable that the respondent has not provided clear and consistent information about the appraisal procedures, so that it may foster confidence, rather than confusion in undertaking appraisal procedures.
The first paragraph of Question 20 acknowledges that the services encompassed in that question are services other than those covered in questions 1 to 19. It is only if the service does not fall within Question 1 to 19, that it may be assessed under Question 20.
It is clear that the term "prescribed" in Question 17 appears in relation to some medication and not to other types of medication. The inconsistency applies to (i) the types of medications that are included in the question (line 1 of T3-28), (ii) the meaning of "assist" where the term "medication" is used; and (iii) the meaning of "administer" where the term "prescribed medication(s)" is used. Further, in the rating chart itself (last paragraph in T3-28), A and B refer simply to "medication" whereas C and D relate to "prescribed medication" and "controlled drug" respectively. (The Tribunal understands that a "controlled drug" is one that is prescribed).

42. The ratings also make no reference to the situation where a care recipient self-manages prescribed medication, or where staff are required to administer and assist with the taking of medication. That is because, according to the definition section in T30-28, a person "administers" prescribed medication(s) whereas a person "assists" by giving "medication".

Ultimately, the view that I have taken is that Question 17, in a very convoluted and confusing manner, is intended to cover all manner of situations where medication, both prescribed and non-prescribed, can be taken by the recipient independently; given or administered with or without assistance and/or supervision.

It is unfortunate that Question 17 is not framed in a manner that provides clarity to care providers as to what is meant by the term "medication". Be that as it may, the decision that Daktarin Tincture is encompassed within Question 17, means that such a service is not appropriately classified under "other services" in Question 20.

45. The Tribunal affirms the decision under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed:         .......................................................................
  Associate
Date/s of Hearing  8 March 2002
Date of Decision  24 May 2002
Counsel for the Applicant        Mr Jarrett
Solicitor for the Applicant         Butler McDermott and Egan
Solicitor for the Respondent    Mr O'Higgins, Blake Dawson Waldron