Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019

Administered by Department of Health, Disability and Ageing

Legislation au F2019L01219 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Aged Care and Senior Australians

Minister for Youth and Sport

 

Aged Care (Transitional Provisions) Act 1997

 

Aged Care (Transitional Provisions) Amendment (September Indexation)
Principles 2019

 

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 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 came into effect on 1 July 2014.

 

Section 96‑1 of the Transitional Provisions Act allows the Minister to make Aged Care (Transitional Provisions) 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.

 

The Aged Care (Transitional Provisions) Principles 2014 (the Transitional Provisions Principles) are made under section 96‑1 of the Transitional Provisions Act.

 

The purpose of the Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 (the Amending Principles) is to amend the Transitional Provisions Principles to update the specified amount of maximum accommodation charge for a post 2008-reform resident as a result of routine indexation.

 

The Amending Principles are a legislative instrument for the purposes of the Legislation Act 2003.

 

Commencement

The Amending Principles commence on 20 September 2019.

 

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.

ATTACHMENT

Details of the Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019

 

Section 1 states that the name of the instrument is the Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 (the Amending Principles).

 

Section 2 sets out the commencement date for the instrument.

 

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

 

Section 4 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

 

Schedule 1 – Amendments

 

Aged Care (Transitional Provisions) Principles 2014

 

Item 1 – Subsection 118(1) (after table item 23)

This item inserts a new item 24 in the table in subsection 118(1) 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 care on or after 20 September 2019 and before 20 March 2020.

The amount is $20.37.

Item 2 – Subsection 118(2) (after table item 23)

This item inserts a new item 24 in the table in subsection 118(2) 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 care on or after           20 September 2019 and before 20 March 2020.

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 these care recipients.

The amount is $37.47.

Item 3 – Subsection 118(3) (after table item 19)

This item inserts a new item 20 in the table in subsection 118(3) 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 care on or after 20 September 2019 and before 20 March 2020 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 these care recipients.

The amount is $37.47.

Item 4 – Subsection 118(4) (after table item 23)

This item inserts a new item 24 in the table to subsection 118(4) 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 September 2019 and before 20 March 2020 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 these care recipients.

The amount is $31.48.

 


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 (September Indexation) Principles 2019

 

The Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 (the Principles) are 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 2011.

 

Overview of the Legislative Instrument

The Principles amend the Aged Care (Transitional Provisions) Principles 2014 to update the specified amount of maximum accommodation charge for a post 2008-reform resident in a residential aged care facility 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 includes matters relating to the payment of aged care subsidies and supplements 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.  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 Richard Colbeck

Minister for Aged Care and Senior Australians, Minister for Youth and Sport

 

 

Overview

The Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 were introduced to amend the Aged Care (Transitional Provisions) Principles 2014 under section 96-1 of the Aged Care (Transitional Provisions) Act 1997. This legislation was enacted to ensure the subsidy payments for aged care services provided to continuing care recipients are updated to reflect routine indexation. The primary objective is to adjust the maximum accommodation charges for post-2008 reform residents based on changes in the consumer price index, ensuring that the payments retain their value over time. The Amending Principles came into effect on 20 September 2019 and were issued under the authority of the Minister for Aged Care and Senior Australians, in line with subsection 33(3) of the Acts Interpretation Act 1901. As the amendments were of a routine nature, no specific consultation was undertaken. The instrument is also compatible with human rights, particularly the right to an adequate standard of living and the highest attainable standard of physical and mental health, as it maintains the value of aged care subsidies and supplements.

Scope and Application

The Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 apply to approved providers of aged care services who are eligible to receive subsidy payments for the care they provide to continuing care recipients. These recipients are individuals who entered an aged care service before 1 July 2014 and have not left for a continuous period of more than 28 days, or who have not chosen to be subject to new rules relating to fees and payments that came into effect on 1 July 2014. The amendment to the Aged Care (Transitional Provisions) Principles 2014, made under section 96-1 of the Aged Care (Transitional Provisions) Act 1997, updates the specified amount of maximum accommodation charge for post-2008-reform residents as a result of routine indexation. The Amending Principles are a legislative instrument under the Legislation Act 2003 and commenced on 20 September 2019. The instrument relies on subsection 33(3) of the Acts Interpretation Act 1901, which allows the power to make, grant, or issue any instrument of a legislative or administrative character to include the power to repeal, rescind, revoke, amend, or vary any such instrument. The Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 is a Commonwealth legislative instrument, applying across Australia to all approved providers of aged care services who are eligible for subsidy payments under the Aged Care (Transitional Provisions) Act 1997. The instrument specifies new maximum accommodation charges for post-2008-reform residents who re-enter care between 20 September 2019 and 20 March 2020, depending on their entry date and other factors. The charges are set out in the Schedule to the Amending Principles and are intended to account for movements in the consumer price index. The instrument does not specify any exclusions, exemptions, or thresholds. The Amending Principles are compatible with human rights, as they promote 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.

Key Provisions

The Aged Care (Transitional Provisions) Amendment (September Indexation) Principles 2019 (the Amending Principles) primarily revise the existing Aged Care (Transitional Provisions) Principles 2014 to adjust the maximum accommodation charges for post-2008 reform residents in residential aged care facilities due to routine indexation. Specifically, section 1 of the Amending Principles renames the instrument, section 2 specifies the commencement date of 20 September 2019, section 3 establishes the authority for the instrument under section 96-1 of the Aged Care (Transitional Provisions) Act 1997, and section 4 details the amendments to the specified instruments. The amendments, outlined in Schedule 1, include updates to the maximum daily accommodation charges for different categories of post-2008 reform residents based on their entry date, income support status, and the building requirements of the service they re-enter. The Amending Principles impose specific obligations on approved providers of aged care services, who must adhere to the updated maximum accommodation charges for their continuing care recipients. These obligations include ensuring that the accommodation charges for post-2008 reform residents align with the new rates specified in the Amending Principles. Approved providers must also ensure that they are correctly applying these charges in accordance with the criteria outlined in the Transitional Provisions Act and the Transitional Provisions Principles. Failure to comply with these updated charges could result in discrepancies in subsidy payments and potential disputes with residents. There are no specific offences, penalties, or civil/criminal consequences outlined in the Amending Principles for breaches of the updated accommodation charges. However, non-compliance with the revised charges could potentially lead to disputes with residents or oversight by the relevant authorities, which might result in corrective actions or adjustments to subsidy payments. The primary focus of the Amending Principles is to ensure that the maximum accommodation charges accurately reflect the routine indexation, thereby maintaining the value of subsidy payments and ensuring that approved providers can continue to offer high-quality care services to continuing care recipients.

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