Uniting Church in Australia Property Trust (NSW) and Secretary to the Department of Health and Ageing
[2003] AATA 512
•2 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 512
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1577
GENERAL ADMINISTRATIVE DIVISION ) Re Uniting Church in Australia Property Trust (NSW) Applicant
And
Secretary to the Department of Health and Ageing
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date2 June 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
...............................................
RP Handley
Deputy President
CATCHWORDS
HEALTH AND AGEING – Aged care – classification of aged care recipient for government subsidiary to approved care provider – reappraisal of level of care needed by care recipient – power of the Respondent to reclassify a care recipient – Respondent subsequently changed classification of care recipient – whether decision of Respondent to change classification was correct – materials considered in making reclassification – materials to which the Tribunal may have regard in reviewing the reviewable decision – whether reviewable decision correct on the material that the Tribunal may have regard to – held decision under review is affirmed.
Aged Care Act1997 ss 7-1, 25-1(2)(3), 25-2, 25-3, 25-3(3), 27-1(2), 28-1(2)(3), 28-2(5), 29-1(1)(3), 85-1, 85-5, 85-8
Aged Care Principles – Classification Principles
Re Brightwater Care Group Inc and Secretary, Department of Health and Ageing [2003] AATA 124
Re Uniting Church Homes – Bethavon Hostel and Secretary, Department of Health and Ageing [2002] AATA 479
REASONS FOR DECISION
2 June 2003 Mr RP Handley, Deputy President 1. This is an application by the Uniting Church in Australia Property Trust (NSW) (“the Applicant”) for a review of a decision of a delegate of the Secretary to the Department of Health and Ageing (“the Respondent”) made on 17 June 2002, changing the classification of a care recipient at the Applicant’s facility known as Wirreanda Retirement Village from level 2 to level 3. Following a reconsideration, the decision was confirmed on 30 September 2002.
2. At the hearing, the Applicant was represented by Geoffrey Brown, Chief Executive Officer of Wirreanda Retirement Village, and the Respondent was represented by Jeremy Kirk, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (“the T Documents”) together with documents tendered by the parties. Mr Brown gave oral evidence for the Applicant.
Background
3. The care recipient whose classification is at issue took up residency at Wirreanda Retirement Village on 22 April 1995. At that time, the Applicant lodged an appraisal with the Respondent and received a classification for the care recipient based on her care needs. The classification of a care recipient determines the amount of Commonwealth subsidy that an approved provider of residential care will receive in respect of a care recipient under the Aged Care Act1997 (“the Act”).
4. On 13 May 2002, the Applicant lodged an application for classification with the Respondent, being an annual re-appraisal in respect of the care recipient (T5). On 12 and 13 June 2002, two Commonwealth Nursing Officers (“CNOs”) visited Wirreanda Retirement Village and conducted a review of the materials on which the classification of the care recipient was made. On 17 June 2002, one of the CNOs (“the Review Officer”), exercising delegated powers, wrote to the Applicant advising that the classification of the care recipient would be changed from classification level 2 to classification level 3 (T7), effective from 19 April 2002 (T12). The basis on which the reclassification was made was a change by the Review Officer of the care recipient’s score for question 5 of the resident classification scale in relation to toileting.
5. On 5 July 2002, the Applicant requested a reconsideration of the decision (T79). At the Respondent’s request, the Applicant provided further information regarding the care recipient’s care program. On the basis of this and the other written material, a different CNO reviewed the care recipient’s classification.
6. On 30 September 2002, having reconsidered the decision, the CNO, acting as a delegate of the Respondent, confirmed the changed classification. In doing so, the delegate confirmed the change in the care recipient’s score made by the Review Officer in respect of question 5 toileting, but the delegate also changed the care recipient’s score for question 2 of the resident classification scale in relation to mobility. This change did not, however, affect the care recipient’s overall classification at level 3.
7. The Applicant was notified of the confirmation of the decision by letter dated 30 September 2002 (T14). On 17 October 2002, the Applicant lodged an application with the Tribunal for a review of the decision.
8. At the hearing of this matter, the Respondent acknowledged that procedural errors had been made in reviewing the care recipient’s score for question 2 mobility, and conceded that the Applicant’s score in respect of this question should not have been changed. However, the Respondent submitted that this concession did not alter the overall classification of the care recipient at level 3. The parties therefore agreed that the sole issue before the Tribunal was the score attributed to the care recipient in respect of question 5 toileting. The Respondent submitted that the material date in respect of the care recipient’s classification was 13 May 2002, the date on which the application for classification of the care recipient was lodged with the Respondent.
Applicable Law
9. The Act, together with the Classification Principles 1997 (“the Classification Principles”) made by the Minister pursuant to s 96-1 of the Act, provide the legislative framework for determining, amongst other matters, Commonwealth funding for residential care facilities. Such funding is partly based on the “residential care” – the personal care or nursing care or both - that is provided by an approved provider to care recipients in a residential facility (s 41-3). An approved provider (s 7-1) will be paid a residential care subsidy in respect of a care recipient according to the care recipient’s classification level (s 25-2), based on the level of care needed by the care recipient (s 25-3).
10. An appraisal of the level of care needed by a care recipient is undertaken by the care provider (s 25-3) in accordance with Classification Principles (s 25-3(3)). The appraisal is taken into account by the Respondent together with any other matters specified in the Classification Principles (s 25-1(3)(c)) in determining a classification level for the care recipient (s 25-1(2)).
11. The level of classification of a care recipient is effective for a period of twelve months from the date the classification took effect (s 27-1(2)(a)), although it may be changed during this period if the needs of a care recipient have “changed significantly” (s 28-2(5)). Renewal of a classification involves the care provider re-appraising the needs of the care recipient during the period beginning one month before the expiration of the classification (s 28-3(1)(a)), and the Secretary taking this into account along with any other matters specified in the Classification Principles (s 28-1(3)). A renewal of a classification must specify the classification level for the care recipient (s 28-1(2)).
12. The Secretary has the power to change such a classification (s 29-1) if the reappraisal is incorrect or inaccurate (s 29-1(1(a)) or was made incorrectly (s 29-1(1)(b)). However, the classification can only be changed after the Secretary has examined the material on which the classification was based (s 29-1(3)(a)) and any other material or information allowed by the Classification Principles (s 29-1(3)(b)). The Secretary must give written notice of such a change of classification to the approved provider (s 29-1(4)).
13. The Act provides for the reconsideration of a decision by the Secretary at the request of a person whose interests are affected by a reviewable decision (ss 85-1 and 85-5), and for an application to be made to the Tribunal for the review of a decision that has been reconsidered (s 85-8).
14. Part 1 of Schedule 1 of the Classification Principles, the Appraisal procedures, describes the resident classification scale as follows:
The resident classification scale consists of 20 questions, each having 4 ratings. The allocation of the 20 ratings, based on the assessed care needs of each care recipient, results in a score which places them on a nationally consistent scale, relative to all other people living in residential care facilities throughout Australia.
The elements in the resident classification scale have been selected as those elements of care that best discriminate between relative care needs. Therefore, the resident classification scale provides a ranking, ranging from people with the highest care needs to those with the lowest care needs.
Issue in dispute
15. The parties agreed at the hearing that the sole issue in dispute is the score attributed to the care recipient in respect of question 5 toileting. In Schedule 1 of the Classification Principles, the Appraisal procedures, question 5 is described as follows:
This question refers to the degree of assistance that the care recipient requires to use a toilet. This includes any kind of toilet such as a commode, urinal, bedpan or a continence sheet (kylie or bluey) used for a planned episode of evacuation of the bowel or bladder.
This question covers intervention required to assist the care recipient:
to use the toilet;
to attend to personal hygiene related to toilet function;
to adjust clothing
16. Schedule 1 provides for four categories of ratings: A, B, C or D. The schedule states:
Note that the care of catheters and colostomies are covered in Question 18. However, toileting aspects associated with a care recipient who has a catheter or a stoma bag, for example emptying drainage bags, personal hygiene and adjusting of clothing, are covered in this question.
For a care recipient with a catheter or a colostomy, emptying a drainage bag and the associated adjusting of clothing and attending to personal hygiene, record B.
When assessing ability to use the toilet, do not include location change that is assessed in Question 2.
In this question:
setting up means preparing the care recipient who then uses the toilet and attends to personal hygiene. It may require positioning the care recipient on the toilet.
some assistance means minor adjustment of clothing.
major assistance means that staff spend time and effort in encouraging and persuading the care recipient to be independent as far as he/she is able, rather than the staff undertaking the activities.
extensive assistance means that staff are required to carry out all activities related to the toileting process.
Rating
Q5 - Toileting
No assistance or not applicable
A
Attend to toileting independently or cannot use any kind of toilet.
Some assistance
B
Requires setting up and some assistance.
Major assistance
C
Requires staff to encourage and persuade care recipient to optimise self-care function.
Extensive assistance
D
Requires staff to carry out all activities.
17. The ratings for each question are accorded a score according to a Table in Part 2 of Schedule 1. For question 5, the scores are as follows:
Rating Score
A 0.00
B 5.98
C 10.65
D 13.70
18. The scores for each of the 20 questions in the resident classification scale are added together to give a total score for each care recipient. Schedule 2 of the Classification Principles sets out the bands of score for each of the eight care classification levels. The two relevant levels in this matter are levels 2 and 3 as follows:
Level 3 : 56.01 - 69.60
Level 2 : 69.61 - 81.00
19. The Respondent accorded the care recipient a B rating for question 5 toileting. She was therefore accorded a score of 5.98 for question 5 rather than the 10.65 for the rating of C accorded her by the Applicant. This had the effect of varying her total score by 4.67 which was sufficient to bring her within the level 3 classification rather than the level 2. This in turn had the effect of reducing the Government funding paid to the Applicant in respect of the care of the care recipient by $5,213.66 per annum.
20. In the request for reconsideration, the Applicant stated (T9):
Our Care Plan identifies that the lady is blind and that she uses a “Stoma” bag. Fitting and changing of the bag is managed by staff. Being blind, the lady experiences major difficulty in using the “public” toilets in our facility, thus there is a need for staff to stay with her during toileting to encourage and persuade the resident to maintain as much toileting independence as possible within the limitations of her vision impairment. For toileting within her unit, staff must ensure that the bathroom is always set up with everything in its proper place so that she can maintain as much toileting independence as possible. However, our strategy of care is for staff to persuade her to do as much by herself rather than to simply take over and physically assist. This strategy is working quite well for [the care recipient] at the moment.
21. When forwarding further documentation to the Respondent for consideration in support of its claim that the care recipient should be accorded a ‘C’ rating in respect of question 5, the Applicant stated (T10A):
We believe this is justified by our Care Plan where we state that staff are to stay with resident during the toileting process. This intervention is necessary in toilets other than her unit toilet – i.e.: where she needs encouragement to carry out the tasks as independently as possible.
22. The Respondent contends that the materials and information do not support a rating of “C” because they show that the care recipient does not require staff to persuade and encourage her to optimise her self-care function on all occasions. The Respondent contends that the care recipient does not need toileting supervision or assistance on each occasion of toilet access. The care recipient remembers to use the toilet and is able to make her way to the toilet in her own unit.
23. The Respondent also contends that a number of matters claimed under question 5 should be, and have been, claimed under other questions. These include:
(a)the transfer assistance which the care recipient requires to use the toilet during mealtime or in activity areas is relevant to an assessment of mobility under question 2;
(b)the care recipient’s need for staff to attend to the replacement or re-positioning of her incontinence pads after emptying her bladder are dealt with under question 6 bladder management;
(c)the care recipient’s need for staff to attend to the emptying and re-fitting of colostomy bags when this is necessary following faecal elimination via her stoma are listed for a B claim in the Guidelines for question five and is a List 1 procedure to be claimed in question 18 technical and complex nursing procedures;
(d)the resident’s documented requirements for clarifying directions because of her blindness are dealt with under question 1 communications;
(e)assistance provided to the resident while toileting when she is in unfamiliar surroundings are dealt with under question 2;
(f)the resident’s attention-seeking and manipulative request of staff which requires staff to accompany her are dealt with under question 12 emotional dependence.
24. The Respondent contends that the materials and information do not support a “C” rating because she uses the toilet independently within her own unit and does not require toileting assistance or supervision on each occasion of toilet access, which is therefore consistent with a B rating.
Geoffrey Brown’s Oral Evidence
25. Mr Brown is the Chief Executive Officer of Wirreanda Retirement Village at West Pennant Hills in Sydney. There are about 50 residents in the Retirement Village. He also has responsibility for managing the self-care part of Wirreanda and one other facility. In total, these are about 250 residents in the three facilities. His office is at Wirreanda where he sees most of the residents every day. He is not involved in any physical care for the residents of the Retirement Village and his knowledge of the care recipient’s care needs is largely based on her Progress Notes and, after the original decision of 17 June 2002, on information obtained from his speaking to staff. In particular, his experience of her toileting needs is very rare.
26. Mr Brown said it takes more than encouragement in assisting the care recipient with toileting. She needs to be persuaded to keep going. The care recipient has multiple problems including visual impairment – she is legally blind, use of a stoma bag following a colostomy, and urinary incontinence. She has had a mastectomy and suffers from depression and low self-esteem. She is unable to manage her stoma bag which needs changing two to three times daily. With regard to urination, she is reasonably independent with encouragement and can change her incontinence pad, although she sometimes needs help with this. She needs to be encouraged in personal hygiene related to toileting but can manage this most of the time. She can also generally adjust her clothing but sometimes needs encouragement.
27. Mr Brown estimated that the care recipient needs encouragement in relation to toileting on about five out of eight occasions during the day. First thing in the morning, a member of staff will go to her unit, for which there is an en-suite toilet, and the care recipient will use the toilet. Mid-morning, the care recipient might manage her own toileting. Later in the morning and around lunchtime she might need encouragement. After lunch, she might manage her own toileting but would need encouragement around afternoon tea time and in the evening. Sometimes, she calls for assistance, for example with her incontinence pad. At night, she can manage with a commode placed next to her bed. Generally, all her toileting involves the use of her ensuite toilet.
28. If the care recipient needs toileting in the communal area of the complex or when, occasionally, she goes out of the village for a doctor’s appointment, she needs assistance, particularly because of her visual impairment. On average, the care recipient needs toileting assistance outside her unit about once a week. Thus, the care recipient needs encouragement the majority of the time. Encouragement takes the form of a member of staff trying to persuade her to go through all steps in the toileting process.
29. Mr Brown said the care recipient is “their world champion button presser”.. She is attention-seeking and can be a bit of a prima donna. He agreed that the encouragement provided to the care recipient may be as part of the daily routine -– for example, when staff visit her first thing in the morning or at meal times. Some residents assist the staff by falling in with the daily routine. Nevertheless, the encouragement provided is not just a visit and reminder. The staff member needs to stay with the care recipient through the toileting process.
Submissions
Respondent
30. Mr Kirk, for the Respondent, submitted that the key date is 13 May 2002 – the date on which the Applicant’s reappraisal application was lodged and on which it is assumed the decision to renew the Applicant’s classification was made. It is the material and information about the care recipient in existence at that date which is relevant in these proceedings.
31. Mr Kirk said the Department provides funding in respect of about 130,000 care recipients, and about 170,000 appraisals are made every year. The difference in number is largely due to recipients dying in the course of the year. The Department conducts reviews of some appraisals every year. In the case of the Applicant, a CNO conducted a review and decided to change the classification level of four recipients cared for by the Applicant. The Applicant sought a reconsideration in respect of one of those recipients, the care recipient. Another CNO undertook the reconsideration of the decision in relation to the care recipient and changed the rating not only in respect of question 5 of the resident classification scale on toileting, in respect of which the Applicant sought a review, but also changed the care recipient’s rating on question 2 mobility, in respect of which the Applicant did not seek a review.
32. Mr Kirk acknowledged the Applicant’s complaint as to the fairness of the review process and that the Applicant was not notified or consulted in relation to the change of the care recipient’s rating on question 2 mobility. Mr Kirk said there were imperfections in the procedure followed. Although the change in the care recipient’s mobility rating from D to C only gives rise a change in the score of 0.28 and would not affect her classification level, nevertheless, the Respondent concedes for present purposes that the care recipient’s mobility should be rated as D and not C.
33. Mr Kirk said it was the change in the care recipient’s rating for question 5 toileting from C to B, involving a change in her score of 4.67, which lead to the change in her classification from level 2 to level 3. He said the monetary difference between level 2 and level 3 in terms of Government funding is $5,213.66 per annum.
34. Mr Kirk said the difference in the question 5 toileting ratings for B and C is between “some assistance” and “major assistance” respectively. Each rating addresses the minimum level of assistance for that rating. The issue for the Tribunal to determine, therefore, is whether the care recipient requires “some assistance” or “major assistance” with her toileting. Mr Kirk said the major consideration is the level of assistance provided to the care recipient in her unit. The Applicant states she needs encouragement on five out of eight toileting occasions during the day. However, he questioned how much of this assistance was attributable to toileting.
35. Mr Kirk noted that a staff member visits the care recipient at regular intervals in the day and such toileting assistance as is given is often while the staff member is there anyway and, he contended, is often not major.
36. Mr Kirk said while a colostomy is covered by the rating in question 18, the classification principles provide, in respect of toileting, that emptying a stoma bag and the associated adjustment of clothing and attending to personal hygiene, should be accorded a B rating. However, if the urinary aspects of toileting require “major assistance” then a C rating is appropriate.
37. Focussing on the urinary aspects of the care recipient’s toileting, Mr Kirk contended there is also overlap with other questions rated in the resident classification scale. This should be taken into account to avoid double counting which is inconsistent with the classification scheme unless specifically provided for. Mr Kirk referred to overlap in relation to the following questions:
·Question 18 – Technical and complex nursing procedures, also covers “stoma maintenance, including replacement of stoma bags and wafer maintenance”. The care recipient was given a D rating for this question because she is unable to manage her stoma bag.
·Question 6 – Bladder management. The care recipient was given a C rating for this question which recognises that she wears incontinence aids at all times.
·Question 7 – Bowel management. The care recipient was given a C rating recognising the need to monitor her “stoma activity” (T10A p5).
·Question 2 – Mobility. Moving to and from the toilet is covered by this question, although Mr Kirk noted the care recipient’s blindness is also a significant factor. The Respondent has now conceded a D rating for this question.
·Question 12 – Emotional dependence, includes reference to attention seeking and manipulative behaviour to which reference was made in the care recipient’s Resident Care Plan (T10A p7). Mr Kirk submitted that the care recipient’s calling for assistance in toileting – Mr Brown described her as “the world champion button presser” – was in part a reflection of her attention seeking behaviour.
38. In conclusion, Mr Kirk submitted that when the overlap between question 5 and other questions is taken into account in relation to the care recipient’s toileting, the Tribunal should give the care recipient a B rating for question 5 rather than a C rating.
Applicant
39. Mr Brown, representing the Applicant, said it is the unfairness of the reconsideration process which is the Applicant’s principal complaint, and the fact that the Applicant was neither notified nor consulted in relation to the reconsideration of the care recipient’s question 2 mobility rating.
40. With regard to the care recipient’s rating for question 5 toileting, Mr Brown said having reviewed the care recipient’s Care Plan (T10A) and other relevant notes (for example, Resident Progress Notes – T10B), and having discussed the level of care afforded to the care recipient at the relevant date with staff, he believes that the appropriate rating for the care recipient in relation to question 5 is C and not B. He submitted that she is being provided with “major assistance”. This does not involve double dipping as suggested by the Respondent. He noted that it is difficult for staff to record everything in detail in the Care Plan or notes.
Application of the Law and Findings
41. The issue for the Tribunal is whether the care recipient’s rating in respect of question 5 toileting should be a ‘B’ or ‘C’. For a B rating the question is whether she requires “some assistance” – described as requiring “setting up and some assistance”. “Setting up” is in turn described as meaning:
Preparing the care recipient who then uses the toilet and attends to personal hygiene. It may require positioning the care recipient on the toilet.
“Some assistance” is described as meaning “minor adjustment of clothing”.
42. For a C rating the question is whether she requires “major assistance” – described as requiring “staff to encourage and persuade care recipient to optimise self-care function”.
43. The Tribunal accepts the Respondent’s contention that there is overlap between the activities covered by question 5 and the activities covered under other questions in relation to stoma maintenance (question 18), bladder management (question 6), bowel management (question 7), mobility (question 2), and emotional dependence (question 12). Those activities covered by other questions must be taken into account when rating the care recipient for question 5.
44. In the Applicant’s letter dated 5 July 2002 requesting a reconsideration of the decision (T10), Mr Brown stated:
Our Care Plan identifies that the lady is blind and that she uses a “Stoma” bag. Fitting and changing of the bag is managed by staff. Being blind, the lady experiences major difficulty in using the “public” toilets in our facility, thus there is a need for staff to stay with her during toileting to encourage and persuade the resident to maintain as much toileting independence as possible within the limitations of her vision impairment. For toileting within her unit, staff must ensure that the bathroom is always set up with everything in its proper place so that she can maintain as much toileting independence as possible. However, our strategy of care is for staff to persuade her to do as much by herself rather than to simply take over and physically assist. This strategy is working quite well for [the care recipient] at the moment.
We firmly believe this is a “C” – as Staff are required to “encourage and persuade Care Recipient to optimise self-care function”.
We believe that our Care Plan substantiates the “C” claim but other evidence is available in our Progress Notes. Our Claim can be further validated by a short observation/conversation with the resident in her unit as indicated by Section 5.5 of the Documentation and Accountability manual.
45. The care recipient’s Resident Care Plan (T10A p5) states:
Staff stay & assist lady “In and out [sic] of unit toilet areas during mealtime or in activity areas. Requires encouragement to accept using these facilities if need urgent …
Her Progress Notes (T10B) do not appear to add anything further. The review sheet prepared by the CNO in undertaking the review also records the following oral evidence (T6):
Oral – staff empty stoma bag, need for assistance with positioning, clothing adjustment and post toilet hygiene when using toilet outside her own unit, able on most occasions to self toilet in own unit. However, there was no documentation to validate major assistance is needed by this resident when toileting is attended.
46. Mr Brown’s evidence is that with regard to urination the care recipient:
is reasonably independent with encouragement and can change her incontinence pad, although she sometimes needs help with this. She needs to be encouraged in personal hygiene related to toileting but can manage most of the time. She can also generally adjust her clothing but sometimes needs encouragement.
47. Mr Brown estimated that the care recipient needs encouragement in relation to toileting on about five out of eight occasions during the day. Generally, all her toileting involves the use of her unit’s ensuite toilet. On average, she needs toileting assistance outside her unit about once a week. The encouragement required takes the form of a member of staff staying with her to try and persuade her to go through all the steps in the toileting process.
48. The Tribunal’s finds, relying on Mr Brown’s oral evidence, that the care recipient is reasonably independent, with encouragement required on approximately five out of eight toileting occasions daily when a staff member stays with her and persuades her to go through the necessary steps. On balance, the Tribunal considers that this is more closely associated with the description of “some assistance” for a B rating for question 5 toileting, reflecting the strategy pursued by the Applicant of assisting the care recipient to maintain toileting independence as far as possible, a strategy which, in the letter dated 5 July 2002, Mr Brown said is “working quite well”.
49. On the basis of that finding, the care recipient’s total score for the 20 questions in the resident classification scale is 4.67 less than Applicant’s reappraisal assessment score of 71.54, and consequently is 66.87. This is within the band for level 3 according to the classification levels in Schedule 2 of the Classification Principles. The decision under review must therefore be affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 2 May 2003
Date of Decision 2 June 2003
Representative for the Applicant Mr G Brown, Chief Executive Officer
Representative for the Respondent Mr J Kirk, Counsel
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