Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019

Administered by Department of Health, Disability and Ageing

Legislation au F2019L00882 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

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

 

Aged Care (Transitional Provisions) Act 1997

 

Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019

 

The Aged Care (Transitional Provisions) Act 1997 (the TP 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 TP 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.

 

Purpose

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 (the Amending Determination) amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014. The purpose of the Amending Determination is to set the amount of subsidies and supplements payable to approved providers of aged care services in respect of a day from 1 July 2019.

 

The Amending Determination also gives effect to the measure announced on 17 December 2018 by the Prime Minister, of an increase of up to $400 per year for the level one home care basic subsidy, $200 per year for the level two home care basic subsidy, and $100 per year for the level three home care basic subsidy. The increases to the level one, level two and level three home care basic subsidy amounts are in addition to routine indexation. These increases ensure that the overall value of the level one, level two and level three home care packages is not reduced by the reduction to the maximum daily fees payable by the recipients of these home care package levels that applies from 1 July 2019.

 

The new Aged Care Funding Instrument (ACFI) and Resident Classification Scale (RCS) basic subsidy amounts to apply from 1 July 2019 are based on the routine indexation of the subsidy rates that applied at 1 July 2018. 

 

The two temporary subsidy increases that applied in the final quarter of 2018-19 cease on 30 June 2019.  These were the $320 million temporary general subsidy boost announced on 10 February 2019 and the $50 million temporary increase to support the transition to new quality standards that was announced on 8 May 2018.

 

 

 


Authority

The TP Act allows the Minister to determine, by legislative instrument, the amounts of subsidy and supplements. Specifically, the authority in the TP Act to make specific determinations in the Amending Determination is set out in the following table:

 

Residential                                                          Section

Basic subsidy

subsection 44-3(2)

Accommodation supplement

subsection 44-5A(3)

Concessional resident supplement

subsection 44-6(4)

Charge exempt resident supplement

subsection 44-8A(3)(b)

Oxygen supplement

subsection 44-13(6)

Enteral feeding supplement

subsection 44-14(6)

Additional primary supplements

subsection 44-16(3)

Adjusted subsidy reduction

subsection 44-19(2)

Hardship supplement

subsection 44-30(5)

Veterans’ supplement

subsection 44-27(3)

Homeless supplement

subsection 44-27(3)

Home care

Basic subsidy amount

subsection 48-1(3)

Top-up supplement

subsection 48-1(3)

Viability supplement

subsection 48-1(3)

 

 

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

Routine indexation of subsidies and supplements in this Amending Determination is calculated through the use of a well-established formula based on the relevant wage and price indices.  Accordingly, no specific consultation was undertaken with respect to the amounts to which routine indexation has been applied in this Amending Determination.

 

 

Commencement

The Amending Determination commences on 1 July 2019. 

 

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

 


ATTACHMENT

 

 

Details of the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019

 

Section 1 states that the name of the instrument is the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019.

 

Section 2 sets out the commencement date for the instrument.

 

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

 

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 this instrument has effect according to its terms.

 

Schedule 1 – Indexation

 

Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014

 

Item 1 – Amendment of listed provisions – indexation of amounts of supplements

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

  • the oxygen supplement;
  • the enteral feeding supplement;
  • the veterans’ supplement;
  • the homeless supplement
  • the adjusted subsidy reduction; and
  • the top-up supplement.

 

Item 2 – Subsection 8(3) (table)

This item provides for the indexation of amounts in relation to the ACFI amounts, by repealing the table to subsection 8(3) and substituting a new table with the indexed amounts.

 

Item 3 – Subsection 10(3) (table)

This item provides for the indexation of amounts in relation to the RCS amounts by repealing the table to subsection 10(3) and substituting a new table with the indexed amounts.

 

Item 4 – Section 83 (table)

This item provides for the indexation of amounts in relation to the basic subsidy amount for home care by repealing the table to section 83 and substituting a new table with the indexed amounts.

 

 

 

Statement of Compatibility with Human Rights

 

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

 

Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Indexation) Determination 2019

 

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 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 2011.

 

Overview of Legislative Instrument

This legislative instrument amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 and increases the amount of particular subsidies and supplements payable to approved providers of aged care services.

 

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 increases the amount of aged 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.

 

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.

 

 

Senator the Hon Richard Colbeck

Minister for Aged Care and Senior Australians

Overview

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014, setting the amount of subsidies and supplements payable to approved providers of aged care services for a day from 1 July 2019. This instrument is designed to address issues arising from the transitional provisions in the Aged Care (Transitional Provisions) Act 1997, which provides for the funding of aged care services for continuing care recipients who were in services prior to 1 July 2014. The enactment of this legislation by the Minister for Aged Care and Senior Australians aims to ensure the ongoing financial support for these services and to maintain the quality of care provided to vulnerable Australians. The policy objective is to uphold human rights, particularly the right to an adequate standard of living and the highest attainable standard of physical and mental health, as reflected in international human rights instruments.

Scope and Application

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 applies to approved providers of aged care services, including residential care and home care services, in Australia. These approved providers must be delivering care to continuing care recipients who were already receiving care in the service as of 1 July 2014 and have not left the service for more than 28 days continuously, excluding any leave periods, or moved to another service without making a written choice to be subject to new rules relating to fees and payments. The Act amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 to adjust the amounts of subsidies and supplements payable to these providers from 1 July 2019. This includes the indexation of various subsidy rates and supplements, such as the oxygen supplement and the veterans’ supplement, in line with routine indexation based on wage and price indices. Additionally, it incorporates temporary increases to certain home care package subsidies that were announced in late 2018, which are set to cease on 30 June 2019. The Determination is made under the authority of the Aged Care (Transitional Provisions) Act 1997 and is compatible with human rights, promoting an adequate standard of living and the highest attainable standard of physical and mental health for recipients of aged care services. The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 extends the application of the Aged Care (Transitional Provisions) Act 1997 through subordinate legislation, ensuring that the specific adjustments to subsidy and supplement amounts are legally binding for the approved providers. The Determination does not introduce any new exclusions or exemptions beyond those already stipulated in the primary Act. The jurisdictional reach of the Determination is national, as it applies uniformly across Australia to ensure consistent support for aged care recipients. The Act's application is limited to transitional provisions for care recipients who were already receiving services before 1 July 2014, thereby not affecting new entrants to aged care services post this date.

Key Provisions

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014. The primary changes involve the indexing of subsidy and supplement amounts for approved providers of aged care services. The determination sets the amounts of subsidy and supplements payable from 1 July 2019, including basic subsidy amounts for residential and home care, and various supplements such as the oxygen supplement, enteral feeding supplement, and veterans’ supplement (Sections 1-4). These adjustments are based on routine indexation and specific increases announced by the Prime Minister. Approved providers of aged care services, who are eligible to receive subsidy payments under the Aged Care (Transitional Provisions) Act 1997 (TP Act), are subject to the provisions of this determination. They must ensure they receive the correct indexed subsidy amounts for the services they provide to continuing care recipients, who are individuals who have been in the same aged care service since before 1 July 2014 (Section 1). Additionally, the determination outlines the cessation of two temporary subsidy increases effective from 30 June 2019, including the $320 million general subsidy boost and the $50 million increase to support the transition to new quality standards. The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (July Indexation) Determination 2019 imposes civil and financial obligations on approved providers to comply with the updated subsidy and supplement amounts. Failure to adhere to these provisions could result in discrepancies in the funding received for the care provided to continuing care recipients. While the determination does not explicitly state penalties for non-compliance, the TP Act provides the framework for enforcement and potential legal actions against non-compliant parties. There are no explicit offences or penalties outlined in the determination itself. However, under the TP Act, non-compliance with the requirements for subsidy payments could potentially lead to enforcement actions, including fines and legal proceedings. The specific penalties would be determined according to the provisions of the TP Act and any relevant administrative or judicial decisions. The determination, however, ensures that the financial obligations are clearly defined to avoid misunderstandings and ensure proper funding for the aged care services provided.

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