EXPLANATORY STATEMENT
Issued under the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Aged Care (Amount of Flexible Care Subsidy – Innovative Care Service – Congress Community Development and Education Unit Ltd) Amendment Determination 2011
The Aged Care Act 1997 (the Act) provides for the regulation and funding of aged care services. Persons who are approved under the Act to provide flexible aged care services can be eligible to receive flexible care subsidy payments in respect of the care they provide to care recipients.
The Aged Care Innovative Pool allows for the development of innovative services, in partnership with other stakeholders including state and territory governments and aged care providers. Since 2001-02, pilot projects have been approved addressing specific categories that were targeted in a particular year. One such pilot service is provided by Congress Community Development and Education Unit Ltd (the approved provider).
Subsection 52-1(1) of the Act provides that the amount of flexible care subsidy that is payable in respect of a day is the amount determined by the Minister by legislative instrument or worked out in accordance with a method determined by the Minister by legislative instrument.
The Aged Care (Amount of Flexible Care Subsidy – Innovative Care Service – Congress Community Development and Education Unit Ltd) Determination 2011 (No. 1) (the Principal Instrument) was signed by the Minister on 17 June 2011 and registered on the Federal Register of Legislative Instruments (FRLI) on 22 June 2011.
The purpose of the Aged Care (Amount of Flexible Care Subsidy – Innovative Care Service – Congress Community Development and Education Unit Ltd) Amendment Determination 2011 (the Amending Instrument) is to amend the Principal Instrument to specify the rate of flexible care subsidy payable to the approved provider, Congress Community Development and Education Unit Ltd. Once amended, this will provide a method for determining the appropriate rate of flexible care subsidy payable in respect of each care recipient to whom the approved provider provides this kind of flexible care. The rate of flexible care subsidy will apply on and from 1 July 2011, to align with the commencement of the funding agreement with the approved provider and the date of commencement of the Principal Instrument.
Subsection 12(2) of the Legislative Instruments Act 2003 provides that if a legislative instrument is expressed to take effect from a time before it is registered, but the instrument would adversely affect the rights of, or impose liabilities on, a person at a time before the instrument is registered, the instrument has no such effect in relation to the period before the instrument is registered.
The retrospective element of the Amending Instrument will not contravene subsection 12(2) of the Legislative Instruments Act 2003. The Principal Instrument neither determines an amount of flexible care subsidy under paragraph 52-1(1)(a) nor determines a method for working out an amount under paragraph 52-1(1)(b) of the Act as an essential element of the method is missing. The Amending Instrument rectifies this error and provides for the appropriate subsidy rate to apply on and from 1 July 2011. This will allow payment of flexible care subsidy to the Congress Community Development and Education Unit Ltd through the Aged Care Innovative Pool 2011-12 from 1 July 2011 until 30 June 2012. As a result, retrospective application of these provisions does not impose any disadvantage on any person other than the Commonwealth.
Consultation
The Department undertook extensive consultation with the approved provider on the establishment of this service and the funding requirements.
Indexation of the subsidy uses a well established formula based on the Consumer Price Index as a measure of the movements in the non-labour costs of providers and the decisions of Fair Work Australia as a measure of non-productivity based movements in the wage costs of providers. As this is in accordance with policy upon which extensive consultation was undertaken, no specific consultation was undertaken with respect to this instrument.
Information about the increase in the amount of the subsidy will be provided to the approved provider.
The Amending Instrument will commence on the day after registration on the FRLI.
The Amending Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.