EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services) Determination 2013 (No. 1)
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.
Multi-Purpose Services are a form of flexible aged care under the Act. A Multi-Purpose Service (MPS) provides integrated health and aged care services for small rural and remote communities. This allows services to exist in regions that could not support stand-alone hospitals or aged care homes.
Subsection 52-1(1) of the Act provides that the Minister for Ageing may determine, by legislative instrument, the amount of the flexible care subsidy or a method that must be used to work out the amount of flexible care subsidy.
The purpose of the Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services) Determination 2013 (No. 1) (the Determination) is to specify the method for working out the amount of flexible care subsidy payable for a day to an MPS, with rates effective from 1 July 2013. This Determination also revokes Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services) Determination 2012 (No. 1).
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
In addition to making routine changes to the Determination, this Determination also includes a new workforce supplement. This workforce supplement forms part of the Living Longer Living Better aged care reform package which was developed in close consultation with the aged care sector, including consumers, industry and professional bodies.
Consultation on the proposed changes to the Act, and to delegated legislation, commenced in November 2012, with the public release of a paper providing an overview of the proposed legislative changes.
A video presentation detailing the changes was also made available through the Living Longer Living Better website, to assist with public understanding of the proposed changes.
During November and December 2012, the Department of Health and Ageing (the Department) also held briefing sessions in Melbourne, Sydney and Canberra on the proposed changes.
Stakeholders and the general community were able to provide written comments during a four-week period (21 November – 21 December 2012). The comments were made publicly available on the Living Longer Living Better website, unless the author requested otherwise. The Department received 54 submissions from members of the public, peak bodies and approved providers in response to the published overview of legislative amendments. Submissions received via the consultation on the overview of the proposed legislative changes were used to inform drafting of the amending bills and the delegated legislation.
In March and April 2013, the Department held industry briefing sessions across Australia to provide information and to explain, in detail, the proposed legislative changes included in the package of Bills introduced into Parliament on 13 March 2013. The briefing sessions also outlined changes to delegated legislation such as these Amending Principles. For those who were unable to attend the briefings a copy of the presentation, supporting handouts, a detailed Questions and Answers document and an information video were made available on the Living Longer Living Better website.
A Strategic Workforce Advisory Group was formed to assist in developing the requirements for the workforce supplement to improve the capacity of the aged care sector to attract and retain staff.
A consultation draft of guidelines on the workforce supplement was released for comment on 2 May 2013. Feedback from this consultation process has contributed to these Principles.
Specific consultation has not been undertaken on the increases to subsidy rates. The rates of subsidy are calculated in accordance with a well established formula that takes into account the Consumer Price Index as a measure of the non-labour costs of providers, and the minimum wage decisions of the Fair Work Commission as a measure of the non-productivity based movements in the wage costs of providers.
Commencement
The Determination commences on 1 July 2013.
ATTACHMENT
Details of the Aged Care (Flexible Care Subsidy Amount – Multi-Purpose Services) Determination 2013 (No. 1)
Section 1 - Name of determination
This section states that this determination is the Aged Care (Flexible Care Subsidy Amount – Multi Purpose Services) Determination (No.1)
Section 2 - Commencement
This section states that this determination commences on 1 July 2013.
Section 3 - Authority
This section states that the authority for this determination is under the Aged Care Act 1997.
Section 4 - Repeal
This section states that the Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services) Determination 2012 (No. 1) is repealed.
Section 5 - Definitions
This section provides the definitions of terms used in this Determination.
Sections 6, 7 and 8
These sections classify MPSs (as Category A, B or C services) based on a point system which takes into account factors such as:
– for Category A services – the location of the service, the number of beds, whether the service is unable to co-locate with another service, the proportion of supported, concessional or assisted residents, whether the service is unable to co-locate with another service and whether the service caters largely for special groups including Aboriginal and Torres Strait Islander groups
– for Category B and C Services – the location of the service, the number of places and the proportion of special needs clients.
The point system allocates points to a service based on the accessibility and remoteness of the location of the service. Accessibility and remoteness are measured using the methodology set out in Measuring Remoteness: Accessibility/Remoteness Index of Australia which gives a value (the ARIA value) for each suburb and town in Australia. In this instrument, the term ‘ARIA value’ is used instead of the term ‘ARIA score’ which was used in previous instruments because it more accurately reflects the terminology used in Measuring Remoteness: Accessibility/Remoteness Index of Australia.
Part 2 – Amount of flexible care subsidy
Division 2.1—Amount of flexible care subsidy
Section 9 - Amount of flexible care subsidy
This section sets out the method for working out the amount of flexible care subsidy that is payable in respect of a day in respect of a multi-purpose service.
Division 2.2 – Applicable amounts for high care places
Section 10 - Applicable amount – high care places
Section 10 sets out the formulae for calculating the daily amount of flexible care subsidy that is payable for a high care place. A different formula applies depending on whether the MPS is an adjusted subsidy reduction multi-purpose service.
Division 2.3 – Applicable amount for low care places
Section 11 - Applicable amount – low care places
Section 11 describes the formula for calculating the daily amount of flexible care subsidy that is payable for a low care place in an MPS.
Division 2.4 – Respite supplement equivalent amount
Section 12 - Respite supplement equivalent amount
Section 12 specifies a daily amount, that is a respite supplement equivalent amount, payable for an MPS. The amount is based on the total number of high and low care places allocated to the service.
Division 2.5 – Workforce supplement
Section 13 – When workforce supplement applies
This section provides that, from 1 July 2013, the workforce supplement applies to an approved provider in respect of a day if:
- the approved provider held places (other than provisionally allocated places) for the provision of care through a multi-purpose service;
- the approved provider’s employees were not employed under a state or territory government award; and
- a determination under section 15 was in force in relation to the approved provider providing the flexible care.
Section 14 - Application for determination
This section states that an approved provider may apply to the Secretary for a determination of eligibility for the workforce supplement.
The application must be in the form approved by the Secretary and include the information (if any) required by the Aged Care Workforce Supplement Guidelines. These Guidelines are published by the Department and area available at www.health.gov.au.
Section 15 - Determination that approved provider is eligible for workforce supplement
This section provides that if the Secretary receives an application from an approved provider, the Secretary may determine that the approved provider is eligible for the workforce supplement.
For the purposes of clarity, subsection 15(2) provides that a determination is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subsection 15(3) provides that the Secretary must not make a determination unless:
- the approved provider has advised the approved provider’s staff, in writing, of the provider’s intention to apply for a determination of eligibility for the workforce supplement. The written advice must include:
– an undertaking that the approved provider will negotiate, with the staff, employment arrangements that meet the minimum wage requirements specified in Part B of the Aged Care Workforce Supplement Guidelines.
– information about how the provider intends to improve: training and education opportunities for the staff; career structures and career development for the staff; and workforce planning in relation to the provision of flexible care; and
- the approved provider has given the Secretary an undertaking that the approved provider will, if requested by the Secretary, participate in a census or survey conducted by the Department about the aged care workforce; and
- the approved provider has given the Secretary an undertaking that the approved provider will comply with the minimum wage requirements, specified in Part B of the Aged Care Workforce Supplement Guidelines, from when the workforce supplement starts applying (if the determination is made).
Subsection 15(4) provides that if the Secretary needs further information to make a decision about the application, the Secretary may (by way of written notice) request the approved provider give the Secretary the further information within 28 days after receiving the notice or such other period specified in the notice.
Subsection 14(5) provides that the application is taken to have been withdrawn if the additional information is not given within 28 days or such other period specified in the notice. The notice must include a statement setting out this effect.
Subsection 14(6) sets out when the determination takes effect. A determination takes effect on the day specified in the determination. The day may be earlier than the day on which the determination is made but not earlier than 1 July 2013.
Subsection 14(7) provides that the Secretary must notify the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given within 28 days after the Secretary receives the application or, if the Secretary has requested further information, within 28 days after receiving the information.
Section 16 - Revocation of Secretary’s determination
This section provides that the Secretary may revoke a determination if he or she is satisfied that the approved provider should no longer be eligible for the workforce supplement or if the approved provider has failed to comply with an undertaking made as part of the application for a determination by the Secretary.
Before deciding to revoke the determination in these circumstances, the Secretary must:
- notify the approved provider that revocation is being considered. The written notice must invite the approved provider to make written submissions to the Secretary (within 28 days after receiving the notice) and inform the approved provider that if no submissions are made within the period, the revocation takes effect on the day after the last day for making submissions;
- consider any submissions made within the required period; and
- have regard to the eligibility criteria specified in Part B of the Aged Care Workforce Supplement Guidelines.
The Secretary may also revoke a determination if the approved provider requests, in writing, the Secretary to revoke the determination.
Regardless of whether the revocation is at the request of the approved provider or on the Secretary’s own initiative, the Secretary must notify the approved provider, in writing, of the decision. The notice must be given within 28 days after the end of the period for making submissions.
If the notice is not given within that period, the Secretary is taken to have decided not to revoke the determination.
In terms of the date of effect of revocation, a revocation has effect:
- if no submissions were made within the required period - on the day after the last day for making submissions; or
- if submissions were made within that period - on the day after the approved provider receives a notice of the Secretary’s decision in relation to the notification.
Section 17 – Workforce supplement amount
This section provides that the amount of the workforce supplement payable in respect of a day for an eligible approved provider is the amount that is 1% of the total subsidy amount, minus the workforce supplement amount, that is payable in respect of the day.
Section 18 - Reviewable decisions
This section provides that a decision to refuse to make a determination or to revoke a determination is a reviewable decision under the Act. This means that a person may seek reconsideration of the decision by the Secretary.
Division 2.6 – Additional amount of community care subsidy
Section 21 - Additional amount of community care subsidy
Section 21 specifies the additional daily amount payable in respect of a community care place in an MPS. The amount of subsidy payable to MPS for community care places is based on an additional daily amount if the MPS is in a rural or remote location, provided that location has an Accessibility/Remoteness Index of Australia (ARIA) value of 3.52 or more. The additional daily amount increases as the ARIA value (the measure of the accessibility and remoteness of the geographical location at which the care recipient resides) increases.
Schedule 1 – Concessional resident equivalent amounts
This Schedule is provided for the purpose of sections 10 and 11 of this Determination. The table specifies the concessional resident equivalent amounts in respect of 72 locations. These amounts are used in calculating applicable amounts for high and low care places.
Schedule 2 – Adjusted subsidy reduction multi-purpose services
This Schedule is provided for the purpose of sections 5 and 10 of this Determination. The table specifies the adjusted subsidy reduction factor in respect of 21 MPSs. These factors are used in calculating applicable amounts for high care places, and in ‘defining an adjusted subsidy reduction multi-purpose service’.
Schedule 3 – Viability supplement equivalent amounts
This Schedule is provided for the purpose of sections 5, 6, 7 and 8 of this Determination.
The Schedule sets out the viability supplement equivalent amount for Category A, B and C services.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services)
Determination 2013 (No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services) Determination 2013 (No. 1) (the Legislative Instrument) is to specify the method for working out the amount of flexible care subsidy payable for a day to the approved provider of a Multi-Purpose Service, with rates effective from 1 July 2013. This Determination also revokes Aged Care (Amount of Flexible Care Subsidy – Multi-Purpose Services) Determination 2012 (No. 1).
Human Rights Implications
This Legislative Instrument promotes the human right to health contained in article 12 of the International Covenant on Economic Social and Cultural Rights. The Legislative Instrument engages the right of everyone to the enjoyment of the highest attainable standard of physical and mental health by ensuring that the amount of flexible care subsidy payable to approved providers of multi-purpose services is increased in line with the increase in the non-labour costs of providers and the minimum wage decisions of Fair Work Australia as a measure of non-productivity based movements of the wage costs of providers. This helps to ensure that the standard of care and services provided to recipients of multi-purpose services is maintained.
Conclusion
This Legislative Instrument is compatible with human rights as it promotes the human right to health.
The Hon. Mark Butler MP
Minister for Mental Health and Ageing