EXPLANATORY STATEMENT
Aged Care (Conditions of Allocation — Extra Service Places)
Determination 2006 (No. 1)
The Aged Care (Conditions of Allocation — Extra Service Places) Determination 2006
(No. 1) is made by a delegate of the Secretary under subsection 14-6(1) of the Aged Care Act 1997 (‘the Act’). The Determination puts beyond doubt that it is a breach of an approved provider’s responsibilities under the Act not to provide the accommodation, services and food specified in an extra service agreement to the standard specified in the extra service agreement.
The Act provides for the funding of aged care services, including residential care services, operated by approved providers. Under paragraph 54-1(1)(a) of the Act, all approved providers of residential care services must provide the care and services specified in Schedule 1 to the Quality of Care Principles 1997 in a way that meets the Accreditation Standards set out in Schedule 2 to those Principles. The services specified in Schedule 1 include hotel-type services such as accommodation, furnishings, meals and resident social activities.
An approved provider may be granted extra service status for a service, or a distinct part of a service, if the standard of the hotel-type services offered is significantly higher than the average standard in residential care services that do not have extra service status. If a service, or a distinct part of a service, has extra service status, the approved provider is able to charge a care recipient receiving care on an extra service basis an approved fee, the extra service fee, in addition to other fees that may be charged in accordance with the Act.
Under section 32-8 of the Act, extra service status is subject to the terms and conditions set out in the notice given to the approved provider under subsection 32-9(1) of the Act. It is a responsibility of an approved provider under paragraph 63-1(1)(i) of the Act to comply with any conditions to which the grant of extra service status is subject under section 32-8 of the Act. If an approved provider fails to provide the accommodation, services and food specified in the subsection 32-9(1) notice to the standard specified in that notice, the Complaints Resolution Scheme established under the Committee Principles 1997 may accept a complaint lodged on behalf of the affected care recipient and the Secretary may take compliance action under Part 4.4 of the Act.
While the notice under section 32-9(1) will specify minimum standards for the accommodation, services and food to be provided by the approved provider to a care recipient receiving residential care on an extra service basis, the care recipient and the approved provider may agree, in the extra service agreement referred to in paragraph
36-1(1)(b) of the Act, that the approved provider will provide more than the minimum (see subsection 36-3(1) of the Act and the Note to that section).
The Act does not state that it is a responsibility of an approved provider to provide the accommodation, services and food specified in the extra service agreement to the standard specified in that agreement. The Complaints Resolution Scheme can only accept complaints about matters that may be a breach of the relevant approved provider's responsibilities under the Act and the Aged Care Principles (see paragraph 10.38(2)(a) of the Committee Principles). Similarly, the Secretary may only take compliance action under Part 4.4 of the Act if the approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 of the Act (see section 65-1 of the Act). Therefore it is currently difficult for the Complaints Resolution Scheme and the compliance area of the Department to deal with a complaint about what is essentially a breach of the approved provider's contractual, rather than legislated, responsibilities.
The Aged Care (Conditions of Allocation — Extra Service Places) Determination 2006
(No. 1) provides a link between an approved provider’s contractual obligations under an extra service agreement and the provider’s responsibilities under the Act and the Aged Care Principles. The Determination makes it a condition to which the allocation of an extra service place is subject under section 14-6 of the Act that the approved provider must provide a care recipient who is receiving residential care, in respect of the place, on an extra service basis with the accommodation, services and food specified in the extra service agreement to the standard specified in the agreement. Under Part 4.3 of the Act, it is a responsibility of an approved provider to comply with any conditions to which the allocation of any of the places included in the service is subject under section 14-5 or 14-6 (see paragraph 63-1(1)(d)).
This Determination provides a clearer pathway for the Complaints Resolution Scheme to deal with complaints about an approved provider's failure to provide the accommodation, services and food specified in an extra service agreement to the standard specified in the agreement. It also ensures that the Secretary can take compliance action under Part 4.4 of the Act if an approved does not comply with its responsibility under Part 4.3 of the Act to comply with the conditions of allocation of an extra service place.
Consultation
Consultation with approved providers and care recipients was not undertaken as the Determination is of a minor or machinery nature and does not substantially alter existing arrangements. Under existing arrangements, approved providers have a contractual obligation to provide, and care recipients who are paying an extra service fee have a contractual right to receive, the extra services specified in the extra service agreement to the standard specified in the agreement
The Determination is a ‘legislative instrument’ for the purposes of the Legislative Instruments Act 2003. Although the Determination applies to allocations that occurred before or after the Determination is made, this is in accordance with subsection 14-6(3) of the Act and does not contravene subsection 12(2) of the Legislative Instruments Act 2003. The rights of approved providers and care recipients as at the date of registration are not adversely affected by the Determination and the Determination does not impose liabilities on any person in respect of anything done or omitted to be done before the date of registration.