Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019

Administered by Department of Health, Disability and Ageing

Legislation au F2019L00844 Not in force Legislative Instrument

Legislation content

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 52D3(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 pre1 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

Overview

The Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019 was enacted to amend the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997. This legislation, issued by the authority of the Minister for Aged Care and Senior Australians, aims to address the issue of aged care fees by reducing the maximum amount of the basic daily fee for certain home care packages. The instrument was introduced following recommendations from the Legislated Review of Aged Care 2017, which suggested that the basic daily fee should be proportionate to the value of the home care package level. The amendments align with the policy objective of ensuring the basic daily fee is consistent with the value of the care provided. This instrument is a legislative tool that allows the Minister to determine the basic daily care fee, with the authority stemming from the Aged Care Act and the Aged Care (Transitional Provisions) Act. The changes made by the instrument to the Aged Care (Subsidy, Fees and Payments) Determination 2014 and the Aged Care (Transitional Provisions) Principles 2014 are designed to ensure that the basic daily fee for home care recipients, both new and continuing, is proportionate to the care package level. The amendments are consistent with the human rights recognised in international instruments, promoting an adequate standard of living and the highest attainable standard of physical and mental health.

Scope and Application

The Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997 provide a framework for the regulation and funding of aged care services in Australia. These acts apply to approved providers of aged care services and their recipients, allowing for the charging of fees for the care provided. This is achieved through the Aged Care (Subsidy, Fees and Payments) Determination 2014, which sets the maximum amount of basic daily fees that approved providers may charge to home care recipients. The Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019 amends these determinations to align with the recommendations of the Legislated Review of Aged Care 2017, reducing the maximum amount of the basic daily fee for certain home care packages, effective from 1 July 2019. The instrument applies to both new and continuing care recipients, with the former experiencing a reduction in fees and the latter seeing their fees adjusted to match those of new recipients. This amendment ensures consistency and fairness in the fee structure across different levels of care packages. The Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019 extends the application of the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997 by specifying the maximum fees that can be charged to home care recipients, thereby directly impacting the financial arrangements between care providers and recipients. This instrument is applicable nationally, affecting all approved providers and care recipients across Australia. There are no specific exclusions mentioned in the instrument, but it is noted that the changes apply to care recipients who entered care after 1 July 2014, with continuing care recipients' fees adjusted to match those of new recipients. The instrument operates within the legislative authority provided by the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997, ensuring compliance with human rights as it promotes the right to an adequate standard of living and the highest attainable standard of physical and mental health.

Key Provisions

The Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019 primarily concerns the amendment of the Aged Care (Subsidy, Fees and Payments) Determination 2014 and the Aged Care (Transitional Provisions) Principles 2014. This legislative instrument aims to establish the maximum amount of basic daily fee that approved providers can charge to home care recipients who are not continuing care recipients, as well as those who are. Under Section 1 of the Instrument, the basic daily fee for home 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 Aged Care Act 1997. This means that the basic daily fee for new home care recipients will vary according to the package level. Continuing care recipients, those who entered care before 1 July 2014, will have their fees amended to align with the new rates, ensuring they pay the same dollar amount for each package level as the basic daily care fee for non-continuing care recipients. Approved providers, who are eligible to charge aged care fees for the care they provide to approved care recipients, must comply with the new maximum amounts of basic daily fees set out in this legislation. These providers need to ensure that their fees for home care recipients do not exceed the rates specified in the Aged Care (Subsidy, Fees and Payments) Determination 2014 and the Aged Care (Transitional Provisions) Principles 2014. It is important for providers to keep up to date with these changes to avoid any potential legal issues. The Aged Care Legislation Amendment (Reducing Home Care Fees) Instrument 2019 does not explicitly outline specific offences, penalties, or consequences for breach. However, non-compliance with the new maximum amounts of basic daily fees could potentially lead to legal consequences. As per the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997, any provider found to be charging fees above the specified limits could face fines, sanctions, or even the suspension or revocation of their provider status. It is essential for approved providers to adhere to the new fee regulations to avoid any potential legal repercussions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.