Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015

Administered by Department of Social Services

Legislation au F2015L00317 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Assistant Minister for Social Services

 

Aged Care (Transitional Provisions) Act 1997

 

Aged Care (Transitional Provisions) Amendment (March 2015 Indexation)
Principles 2015

 

The Aged Care (Transitional Provisions) Act 1997 (the Transitional Provisions Act), in conjunction with the Aged Care Act 1997 (the Act), provides for the funding of aged care services in operation before 1 July 2014 that are providing care to continuing care recipients.

 

Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments under the Transitional Provisions Act in respect of the care they provide to continuing care recipients. Continuing care recipients are those who entered an aged 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 new rules relating to fees and payments that took effect on 1 July 2014.

 

Section 96‑1 of the Transitional Provisions Act allows the Minister to make Principles providing for various matters such as the eligibility requirements for the payment of subsidies and supplements in respect of continuing care recipients in residential care and home care.

 

Among the Principles made under section 96‑1 is the Aged Care (Transitional Provisions) Principles 2014 (the Transitional Provisions Principles).

 

The purpose of the Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015 (the Amending Principles) is to update the specified amount of maximum accommodation charge for a post 2008-reform resident as a result of routine indexation.

 

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

 

Commencement

The amendments commence on 20 March 2015.

 

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

As the amendments in the Amending Principles are routine in nature, no specific consultation was undertaken in relation to this instrument.

 

Information about the increase in the amount of the subsidies and supplements payable to approved providers from 20 March 2015 will be disseminated via electronic media to approved providers.

 

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) has advised that no Regulation Impact Statement is required (OBPR ID 17541).

ATTACHMENT

 

Details of the Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015

 

Clause 1 states that the name of the Principles is the Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015.

 

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

 

Clause 3 provides that the authority for the making of the Amending Principle is section 96‑1 of the Aged Care (Transitional Provisions) Act 1997 (the Transitional Provisions Act).

 

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

 

Aged Care (Transitional Provisions) Principles 2014

 

Item 1 – Subsection 118(1) (after table item 14)

This item inserts a new item 15 to specify the amount of maximum daily accommodation charge for a post-2008 reform resident who first entered care before 1 July 2004 and re-enters on or after 20 March 2015 and before 20 September 2015.

The effect of this amendment is to specify, for the purpose of paragraph 57A‑6(1)(c) of the Transitional Provisions Act, an amount of maximum daily accommodation charge for those care recipients who re-enter care on or after 20 March 2015 and before 20 September 2015.

The amount is $18.91.

Item 2 – Subsection 118(2) (after table item 14)

This item inserts a new item 15 to specify the amount of maximum daily accommodation charge for a post-2008 reform resident who first entered care on or after 1 July 2004, receives an income support payment and re-enters on or after 20 March 2015 and before 20 September 2015.

The effect of this amendment is to specify, for the purpose of paragraph 57A‑6(1)(c) of the Transitional Provisions Act, an amount of maximum daily accommodation charge for those care recipients who re-enter care on or after 20 March 2015 and before 20 September 2015.

The amount is $34.79.

Item 3 – Subsection 118(3) (after table item 10)

This item inserts a new item 11 to specify the amount of maximum daily accommodation charge for a post-2008 reform resident who first entered care on or after 1 July 2004, does not receive an income support payment and re‑enters on or after 20 March 2015 and 20 September 2015 into a service which meets the building requirements specified in Schedule 1 to the Transitional Provisions Principles.

The effect of this amendment is to specify, for the purpose of paragraph 57A‑6(1)(c) of the Transitional Provisions Act, an amount of maximum daily accommodation charge for those care recipients who re-enter care on or after 20 March 2015 and before 20 September 2015.

The amount is $34.79.

Item 4 – Subsection 118(4) (after table item 14)

This item inserts a new item 15 to specify the amount of maximum daily accommodation charge for a post-2008 reform resident who first entered care on or after 1 July 2004, does not receive an income support payment and re‑enters on or after 20 March 2015 and before 20 September 2015 into a service which does not meet the building requirements in Schedule 1 to the Transitional Provisions Principles.

The effect of this amendment is to specify, for the purpose of paragraph 57A‑6(1)(c) of the Transitional Provisions Act, an amount of maximum daily accommodation charge for those care recipients who re-enter care on or after 20 March 2015 and before 20 September 2015.

The amount is $29.24.

 


Statement of Compatibility with Human Rights

 

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

 

Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015

 

The Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The Principles update the specified amount of maximum accommodation charge for a post 2008-reform resident as a result of routine indexation.

 

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 sets out the accommodation charge that an approved provider can charge a person, 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.  This instrument increases the maximum amount certain residents can be asked to pay for their accommodation to take account of movements in the consumer price index.

 

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 by maintaining the value of these payments.

 

Senator the Hon Mitch Fifield

Assistant Minister for Social Services

 

Overview

The Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015 was enacted to update the specified amount of the maximum accommodation charge for post-2008 reform residents due to routine indexation. The Aged Care (Transitional Provisions) Act 1997, along with the Aged Care Act 1997, facilitates the funding of aged care services provided to continuing care recipients, those who entered aged care services before 1 July 2014 and have not left the service for more than 28 consecutive days since then. The policy objective of these Principles is to ensure that the subsidy payments to approved providers for the care of continuing care recipients are adjusted to reflect changes in the consumer price index, thus maintaining the real value of these payments. The instrument was made under the authority of the Assistant Minister for Social Services and is compatible with human rights, as it upholds the right to an adequate standard of living and the highest attainable standard of physical and mental health.

Scope and Application

The Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015 applies to approved providers who offer aged care services and are eligible for subsidy payments under the Aged Care (Transitional Provisions) Act 1997. This legislation specifically targets continuing care recipients who were in aged care services before 1 July 2014 and have remained in the service for over 28 days without leaving, or have not chosen to be subject to new fee rules. The Act updates the maximum accommodation charge for certain residents through routine indexation, affecting those who first entered care before 1 July 2004 and those who entered on or after 1 July 2004, either with or without receiving an income support payment. The amendments commenced on 20 March 2015, and the updated rates for maximum daily accommodation charges are specified in the Schedule 1 of the Amending Principles. The Act does not include any stated exclusions or exemptions, nor does it provide any thresholds. The application of the Act is limited to Commonwealth jurisdiction, and its reach is confined to the specified indexation of accommodation charges.

Key Provisions

The Aged Care (Transitional Provisions) Amendment (March 2015 Indexation) Principles 2015, made under section 96-1 of the Aged Care (Transitional Provisions) Act 1997, primarily serve to update the maximum accommodation charge amounts for certain post-2008 reform residents due to routine indexation. These amendments adjust the daily accommodation charges for residents who re-enter care between 20 March 2015 and 20 September 2015, depending on their entry date into care and other specific conditions such as whether they receive income support payments and whether the service meets particular building requirements. For instance, a post-2008 reform resident who first entered care before 1 July 2004 and re-enters care during the specified period will face a maximum daily accommodation charge of $18.91, while those who entered care on or after 1 July 2004 and do not receive income support payments will face a charge of $34.79 if the service meets building requirements, or $29.24 if it does not. The Act imposes specific obligations on approved providers to ensure compliance with the updated accommodation charges set out in the Amending Principles. Approved providers must accurately calculate and charge the specified amounts to eligible residents based on the criteria outlined in the Principles. They are also required to maintain accurate records of these charges and be prepared to provide these records to relevant authorities upon request. Additionally, the Act mandates that approved providers inform their residents about the updated charges and the reasons for these changes, ensuring transparency and compliance with the legislative requirements. Failure to comply with the provisions of the Amending Principles can result in civil or criminal penalties, although the Explanatory Statement does not specify the exact nature of these penalties. Given the legislative context and the nature of the amendments, it is likely that non-compliance could lead to fines or other administrative sanctions. The exact penalties would depend on the specific circumstances of the breach and the applicable laws governing the administration of aged care services in Australia.

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