EXPLANATORY STATEMENT
Issued by the authority of the Minister for Aged Care
Aged Care Act 1997
Aged Care (Subsidy, Fees and Payments) Amendment (Short-term Restorative Care) Determination 2016
Purpose
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.
Currently the Aged Care (Subsidy, Fees and Payments) Determination 2014 (the Determination) sets out the amount of subsidy payable to an approved provider who provides flexible care to care recipients.
This instrument amends the Determination to add the method for working out the amount of flexible care subsidy payable for a care recipient who is being provided with short-term restorative care, which is a new kind of flexible care being established by the Aged Care Legislation Amendment (Short‑term Restorative Care) Principles 2016.
Background
As part of the 2015-16 Budget measure Aged Care – Increasing short term restorative care places, the Australian Government announced the expansion of flexible aged care initiatives to include a new kind of flexible care called short-term restorative care. The budget measure is implemented primarily through changes to the Principles made under the Aged Care Act 1997.
This instrument is necessary to give effect to short-term restorative care by specifying the amounts of flexible care subsidy that will be payable to approved providers who provide short-term restorative care to care recipients.
Commencement
The instrument commences on the same time as the Aged Care Legislation Amendment (Short term Restorative Care) Principles 2016. That instrument commences on the day after it is registered. The purpose of aligning the commencement of the Determination with that instrument is to ensure that all legislative amendments required for the implementation of the short-term restorative care programme will commence on the same date.
Consultation
In developing the policy design of the short-term restorative care programme, the Department held a public consultation process including the release of a public policy consultation paper which sought feedback from the aged care sector, external workshops and a webinar. The Department received submissions from individuals and a range of organisations including aged care sector peak body representatives, state and territory governments, medical experts, allied health, Aboriginal health services and individual aged care sector providers from across the country, including from rural and remote areas. Stakeholder feedback received in these submissions and workshops informed the final design of the short-term restorative care programme.
In preparing this instrument, and the other instruments that relate to this policy initiative, the Department also consulted with the Department of Veterans’ Affairs, the Department of Human Services and the Australian Aged Care Quality Agency on the parts of the changes relevant to each body. As this instrument does not include any substantial policy issues (because it focuses on prescribing amounts of subsidy) an exposure draft of this instrument was not released for public comment.
Regulation Impact Statement (RIS)
Following consultation with the Office of Best Practice Regulation (OBPR), a RIS is not required as per OPBR reference number 18241.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Explanation of the provisions
Section 1
This section provides how the proposed instrument is to be cited, that is, as Aged Care (Subsidy, Fees and Payments) Amendment (Short-term Restorative Care) Determination 2016.
Section 2
This section sets out the commencement of this instrument. The commencement date is the same time as the Aged Care Legislation Amendment (Short term Restorative Care) Principles 2016.
Section 3
This section provides that the authority for making this instrument. This instrument is made under section 52‑1 of the Aged Care Act 1997.
Under subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act), 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.
Accordingly, the power in section 52-1 of the Act is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to vary the Determination.
Section 4
This section 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
Schedule 1, item 1
This item adds Part 4 – Amount of flexible care subsidy—care provided as short term restorative care to Chapter 4 of the Determination. The provisions set out the purpose of the Part and the method by which the amount of flexible care subsidy is calculated for a day for a care recipient who is being provided with short-term restorative care (as defined by section 106A of the Subsidy Principles 2014). The amount of subsidy is calculated by adding together the basic subsidy amount and the dementia and veterans’ supplement equivalent amount. The subsidy amount for the basic subsidy and dementia and veterans’ supplement equivalent amount is set out in subsections 106B(2) and (3) of this instrument.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Subsidy, Fees and Payments) Amendment (Short-term Restorative Care) Determination 2016
This Determination 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 2001.
Overview of the Legislative Instrument
This legislative instrument amends the Aged Care (Subsidy, Fees and Payments) Determination 2014 to specify the amount of flexible care subsidy that will be payable to approved providers in respect of a care recipient who is being provided with short-term restorative care, which is a new kind of flexible care being established by the Aged Care Legislation Amendment (Short‑term Restorative Care) Principles 2016.
Human Rights Implications
This legislative instrument is compatible with the right to an adequate standard of living and the right to 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 flexible care 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, the legislative instrument specifies the amount of flexible care subsidy that is payable to approved providers for care and services provided to care recipients receiving short-term restorative care.
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 Hon Sussan Ley, MP
Minister for Aged Care