EXPLANATORY STATEMENT
Issued by the authority of the Minister for Aged Care and Senior Australians
Aged Care Act 1997 and Aged Care (Transitional Provisions) Act 1997
Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019
The Aged Care Act 1997 (the Act) and the Aged Care (Transitional Provisions) Act 1997 (the TP Act) provide for the regulation and funding of aged care services. Approved providers may be eligible to charge aged care fees in respect of the care they provide to approved care recipients.
Purpose
The Act and the TP Act sets out the maximum aged care fees providers are able to charge care recipients. This instrument amends the Aged Care (Subsidy, Fees and Payments) Determination 2014 to determine under the Act the maximum amount of basic daily fee that an approved provider may charge a home care recipient who is not a continuing care recipient. This instrument also amends the principles made under the TP Act to specify the maximum amount of basic daily fee that an approved provider may charge a home care recipient who is a continuing care recipient. This is consistent with the purposes of the Act and the TP Act.
This instrument gives effect to the measures announced on 17 December 2018 by the Prime Minister, The Hon Scott Morrison MP, of a reduction in the maximum amount of the basic daily fee for certain home care packages
Authority
The Act and the TP Act provide that the Minister may determine the basic daily care fee. The authority for making specific determinations regarding the basic daily care fee for a care recipient is set out in paragraph 52D‑3(a) of the Act and Division 60-2 of the TP Act.
Reliance on subsection 33(3) of the Acts Interpretation Act 1901
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Consultation
The Legislated Review of Aged Care 2017, carried out in 2017 by Mr David Tune AO, PSM, recommended, following public consultation that the basic daily fee be made proportionate to the value of the home care package level. These amendments are consistent with that recommendation.
Commencement
This instrument commences on 1 July 2019.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT
Details of the Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019
Section 1 states that the name of the instrument is the Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019.
Section 2 sets out the commencement date for the instrument.
Section 3 states the authority for the making of the instrument.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Aged Care (Subsidy, Fees and Payments) Determination 2014
Item 1 – Insert amounts of basic daily care fees determined by the Minister
The basic daily fee for care recipients who entered care after 1 July 2014 is either 17.5% of the basic age pension or an amount determined by the Minister under the Act. The basic daily fee for pre‑1 July 2014 care recipients (continuing care recipients) are specified in the TP Act.
This item determines the basic daily fees applicable to care recipients who entered care after 1 July 2014 by amending the Aged Care (Subsidy, Fees and Payments) Determination 2014 so that the basic daily fee varies according to the package level.
Item 3 makes amendments for continuing care recipients that result in them paying the same amounts.
As a result, the amended basic daily care fee value will apply from 1 July 2019 for all care recipients who are in recipient of a level 1, 2 or 3 home care package. The basic daily care fee will remain unchanged for a level 4 home care package.
Item 2 – Amendments of section heading
This item amends the heading of section 108 to Basic daily care fee during suspension period.
Aged Care (Transitional Provisions) Principles 2014
Item 3 – Amendments of subsection 130(2)
This item amends the principles made under the TP Act to specify the percentage of the maximum basic rate of pension used to calculate this component of the maximum daily amount of home care fee for continuing care recipients. This will result in the same dollar amount for each package level as the basic daily care fee for non-continuing care recipients.
The remainder of the calculation for home care fees remains unchanged.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Humans Rights (Parliamentary Scrutiny) Act 2011
Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019
This 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) Act 2011.
Overview of Legislative Instrument
The Aged Care Act 1997 (the Act) and the Aged Care (Transitional Provisions) Act 1997 (the TP Act) provide for the regulation and funding of aged care services. Approved providers may be eligible to charge aged care fees in respect of the care they provide to approved care recipients.
This instrument amends the Aged Care (Subsidy, Fees and Payments) Determination 2014 to determine under the Act the maximum amount of basic daily fee that an approved provider may charge a home care recipient who is not a continuing care recipient. This instrument also amends the principles made under the TP Act to specify the maximum amount of basic daily fee that an approved provider may charge a home care recipient who is a continuing care recipient.
Human Rights Implications
This legislative instrument is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in Article 11(1) and Article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and Article 25 and Article 28 of the Convention on the Rights of Persons with Disabilities.
This legislative instrument either maintains or reduces the amount of basic daily fee currently payable by home care recipients.
Conclusion
This legislative instrument is compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.
The Minister for Aged Care and Senior Australians,
Senator the Hon Richard Colbeck