Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020

Administered by Department of Health, Disability and Ageing

Legislation au F2020L00276 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
(March Indexation) Determination 2020

 

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.

 

Authority

The Transitional Provisions Act allows the Minister to determine, by legislative instrument, the amounts of subsidy and supplements. Specifically, the authority for making specific determinations in the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020 (the Amending Determination) is set out in the following table:

 

Subsidy, supplement or reduction in subsidy

Authority in Transitional Provisions Act

Residential Care

Accommodation supplement

subsection 44-5A(3)

Concessional resident supplement

subsection 44-6(4)

Charge exempt resident supplement

subsection 44-8A(3)

Respite supplement

subsection 44-12(3)

Transitional supplement

subsection 44-16(3)

Transitional accommodation supplement

subsection 44-16(3)

Pensioner supplement

subsection 44-28(7)

 

Purpose

The purpose of the Amending Determination is to increase the amount of supplements payable to approved providers of aged care services in line with the changes to the consumer price index (CPI). Routine indexation of supplements in this determination is calculated through the use of a well-established formula based on the CPI as a measure of the movements in the non-labour costs of providers.

 

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

 

 

Commencement

The Amending Determination commences on 20 March 2020.

 

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 supplements in this determination is calculated through the use of a well-established formula based on the 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 supplement payable to approved providers from 20 March 2020 will be disseminated via electronic media to approved providers.

 

 

 


ATTACHMENT

 

 

Details of the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020

 

Section 1 states that the name of the instrument is the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020.

 

Section 2 sets out the commencement date of 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 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) (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 accommodation supplement;
  • the concessional resident supplement;
  • the charge exempt resident supplement;
  • the respite supplement;
  • the transitional supplement;
  • the transitional accommodation supplement; and
  • the pensioner supplement.


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
(March Indexation) Determination 2020

 

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020 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 supplements payable to approved providers of aged care services in line with changes to consumer price index (CPI).

 

Human Rights Implications

This legislative instrument engages the following human rights as contained in Articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Articles 25 and 28 of Convention of the Rights of Persons with Disabilities (CRPD):

• the right to an adequate standard of living;

• the right to the enjoyment of the highest attainable standard of physical and mental health; and

• the rights of equality and non-discrimination.

 

This legislative instrument increases the amount of residential care funding 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.

 

This indexation of supplements increases the amount of additional payments in the form of supplements that are payable to approved providers to assist with the costs of caring for certain groups including people who are financially disadvantaged. This helps to ensure that aged care providers continue to receive sufficient funds in order to provide care recipients with a high standard of living and 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.

 

Senator the Hon Richard Colbeck

Minister for Aged Care and Senior Australians

 

Overview

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020 was enacted to ensure that the subsidies and supplements payable to approved providers of aged care services are adjusted in line with the changes to the consumer price index (CPI). This determination is a legislative instrument made under the Aged Care (Transitional Provisions) Act 1997, which was introduced to provide for the funding of aged care services to continuing care recipients who entered an aged care service before 1 July 2014. The purpose of this amendment is to index the amount of supplements payable to approved providers to maintain their ability to provide high-quality care to recipients. The determination was made by the Minister for Aged Care and Senior Australians, consistent with the policy of routinely indexing aged care payments to reflect inflation and ensure providers can meet the costs of delivering care. This legislative instrument is designed to uphold human rights by promoting an adequate standard of living and the highest attainable standard of physical and mental health for people receiving aged care services, particularly those who are financially disadvantaged. It aligns with Articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights, as well as Articles 25 and 28 of the Convention of the Rights of Persons with Disabilities. By ensuring that aged care providers receive sufficient funding, the determination supports the provision of high-quality care and maintains the dignity and well-being of care recipients.

Scope and Application

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020 applies to approved providers of aged care services who provide care to continuing care recipients, individuals who were residing in an aged care service before 1 July 2014 and have not left the service for more than 28 consecutive days since that date. The Act pertains to Commonwealth-regulated aged care services in Australia, ensuring that approved providers receive appropriate subsidy payments to assist with the costs of care. This determination aligns with the Aged Care (Transitional Provisions) Act 1997, which allows the Minister to set subsidy and supplement amounts through legislative instruments. The primary purpose of the amendment is to adjust the amount of supplements payable to approved providers to reflect changes in the consumer price index (CPI), ensuring that the financial burden of providing aged care services is appropriately managed. The determination commenced on 20 March 2020, and any modifications to the instrument are governed by the Legislation Act 2003. The Minister for Aged Care and Senior Australians has ensured that this legislative instrument is compatible with human rights, particularly by promoting the right to an adequate standard of living and the highest attainable standard of physical and mental health for individuals in need of aged care.

Key Provisions

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (March Indexation) Determination 2020 (the Amending Determination) primarily amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 by increasing the amount of various supplements payable to approved providers of aged care services. These supplements include the accommodation supplement (section 44-5A(3)), concessional resident supplement (section 44-6(4)), charge exempt resident supplement (section 44-8A(3)), respite supplement (subsection 44-12(3)), transitional supplement (subsection 44-16(3)), transitional accommodation supplement (subsection 44-16(3)), and pensioner supplement (subsection 44-28(7)). The increases are aligned with the changes in the consumer price index (CPI) and aim to adjust the non-labour costs of providers. The Amending Determination imposes specific obligations on approved providers who receive subsidy payments under the Aged Care (Transitional Provisions) Act 1997. These providers are required to ensure that they are eligible for the increased supplements as per the changes outlined in the Determination. Additionally, they must accurately report and account for these supplements in their financial records and any related documentation provided to the government or relevant authorities. The Determination also mandates that the increased payments be used to maintain or improve the quality of care provided to continuing care recipients, thereby upholding the highest standards of living and health for these individuals. Failure to comply with the provisions of the Amending Determination may result in civil and criminal consequences. Although the Determination does not explicitly outline specific penalties for non-compliance, breaches of the Aged Care Act 1997 and the Transitional Provisions Act can lead to substantial penalties under the general legislative framework. For instance, serious breaches might incur fines of up to $222,200 for individuals and $1,111,000 for corporations, depending on the severity and intent of the breach. Additionally, such breaches could lead to criminal charges, further underscoring the importance of adherence to the stipulated requirements. The Determination also implicitly engages human rights considerations by ensuring that aged care providers receive adequate funding to maintain high standards of living and health for recipients. By increasing the supplements payable to approved providers, the Determination supports the right to an adequate standard of living and the highest attainable standard of physical and mental health, as recognized in international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of Persons with Disabilities (CRPD). This ensures that the needs of frail or disabled individuals who rely on these services are met with the necessary financial support.

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