Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Aged Care

Aged Care Act 1997

Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016

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 aged care services (approved providers) can be eligible to receive subsidy and supplement payments in respect of the care they provide to approved care recipients.

The Act provides that for each type of aged care, the Minister may determine the amount of subsidy and supplement payable to an approved provider for the provision of that type of aged care.

The purpose of Part 1 of the Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016 (the Amending Determination) is to increase the amount of supplements payable to approved providers of aged care services in respect of a day from 20 March 2016 in line with the changes to the consumer price index (CPI), in addition to increasing the value of the caps and thresholds in line with the age pension.  Part 2 of the Amending Determination makes minor changes to the circumstances in which primary supplements are paid for home care.  These changes ensure that the payment of supplements is consistent throughout the aged care legislation.

The Amending Determination applies only in respect of care recipients who are not continuing care recipients. Continuing care recipients are those who entered a care service before 1 July 2014 and since that time have not left the service for a continuous period of more than 28 days (other than because the person is on leave), or before moving to another service, have not made a written choice to be subject to the new rules relating to fees and payments that took effect on 1 July 2014. The amount of subsidy and supplements payable in respect of continuing care recipients is detailed in the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014.

The Amending Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Commencement

The amendments in Schedule 1 commence on 20 March 2016.

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 amendments in Part 1 implement routine indexation.  Routine indexation of supplements in this Amending Determination is calculated through the use of a well-established formula based on the consumer price index (CPI) as a measure of the movements in the non-labour costs of providers. As this is in accordance with the general policy for indexation of aged care payments upon which extensive consultation was undertaken, no specific consultation was undertaken with respect to this indexation.

Information about the increase in the amount of the supplements payable to approved providers from 20 March 2016 will be disseminated via electronic media to approved providers.

The amendments in Part 2 make technical corrections.  As Part 2 is of a machinery nature and does not substantially alter existing arrangements, no consultation has occurred (section 18, Legislative Instruments Act 2003).

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) has advised that no Regulation Impact Statement is required for either the indexation of aged care subsidies and supplements (OBPR ID 11719) or the technical amendments to the payment of primary supplements to approved providers (OBPR ID 20361).

ATTACHMENT

Details of the Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016

Clause 1 states that the name of the determination is the Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016.

Clause 2 sets out the commencement date for the Amending Determination.

Clause 3 provides that the authority for the making of the determination is the Aged Care Act 1997.

The authority for making specific determinations is set out in the following table:

Clause 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

Part 1 – March 2016 Indexation

Aged Care (Subsidy, Fees and Payments) Determination 2014

Item 1 – Amendments of listed provisions – indexation of amounts

This item provides for the indexation of amounts in relation to the following:

• the respite supplement;
• the caps which limit the amount of means tested and income tested care fees payable by care recipients;
• the cap on the value of the former principal residence;
• the asset thresholds at which different taper rates apply in the asset test;
• the accommodation supplement; and
• the income thresholds at which the different caps on the income tested care fees in home care apply.

Part 2 – Other Measures

Aged Care (Subsidy, Fees and Payments) Determination 2014

Item 2 – Subsection 70(1)

This item amends subsection 70(1) to include a reference to the new subsection 70(3).

Item 3 – After subsection 70(3)

This item inserts a new subsection which clarifies the operation of the oxygen supplement and determines a nil amount for a day for a care recipient where care is suspended under Section 46-2 of the Act on a day referred to in paragraphs 68(2)(b), 68(4)(b) or 68(5)(b) of the Determination. 

Item 4 – Subsection 72(1)

This item amends subsection 72(1) to include a reference to the new subsection 72(3).

Item 5 – After subsection 72(2)

This item inserts a new subsection which clarifies the operation of the enteral feeding supplement and determines a nil amount for a day for a care recipient where care is suspended under Section 46-2 of the Act on a day referred to in paragraphs 68(2)(b), 68(4)(b) or 68(5)(b) of the Determination. 

Item 6 – Section 74

This item substitutes a new section 74 to include a new subsection 74(2).  Subsection (1) determines the amount of the dementia and cognition supplement for a day for a care recipient. 

Subsection (2) clarifies the operation of the dementia and cognition supplement and determines a nil amount for a day for a care recipient where care is suspended under Section 46-2 of the Act on a day referred to in paragraphs 68(2)(b), 68(4)(b) or 68(5)(b) of the Determination. 

Item 7 – Section 76

This item substitutes a new section 76 to include a new subsection 76(2).  Subsection (1) determines the amount of the veterans’ supplement for a day for a care recipient. 

Subsection (2) clarifies the operation of the veterans’ supplement and determines a nil amount for a day for a care recipient where care is suspended under Section 46-2 of the Act on a day referred to in paragraphs 68(2)(b), 68(4)(b) or 68(5)(b) of the Determination. 

Statement of Compatibility with Human Rights
 

Prepared in accordance with Part 3 of the Humans Rights (Parliamentary Scrutiny) Act 2011

Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016
 

The Aged Care (Subsidy, Fees and Payments) Amendment (March 2016 Indexation and Other Measures) Determination 2016 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

This legislative instrument amends the Aged Care (Subsidy, Fees and Payments) Determination 2014, and increases the amount of particular supplements payable to approved providers of aged care services in line with the changes to the consumer price index (CPI), in addition to increasing the value of the caps and thresholds in line with the age pension.  It also determines that a nil amount of primary supplement is payable in certain circumstances where the provision of home care to a care recipient is suspended under section 46-2 of the Aged Care Act 1997 (the Act).

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 concerns the amount of subsidy payable to approved providers for the provision of care and services to people with a condition of frailty or disability who require assistance to achieve and maintain the highest attainable standard of physical and mental health.

Specifically, Part 1 of this legislative instrument increases the amounts of additional payments in the form of supplements that are payable to approved providers to assist with the costs of caring for people who are financially disadvantaged.  It also increases the thresholds and caps that are taken into account in determining how much people who can afford to contribute to the cost of their care can be asked to pay.  These increases are designed to ensure the payments and contributions keep pace with increases in the consumer price index.

Part 2 of the legislative instrument determines a nil amount for primary supplements for a day in relation to a care recipient where home care to that care recipient is suspended under section 46-2 of the Act.  These changes ensure that the payment of supplements is consistent throughout the aged care legislation.

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, the Hon Sussan Ley]