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

Administered by Department of Health, Disability and Ageing

Legislation au F2019L01216 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) (Subsidy and Other Measures) Amendment (September Indexation) Determination 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.

 

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 (September Indexation) Determination 2019 (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)

Amount of other supplement

Subsection 44-27(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).

 

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

 

 

Commencement

The Amending Determination commences 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

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 September 2019 will be disseminated via electronic media to approved providers.

 

 

 


ATTACHMENT

 

 

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

 

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

 

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 (September Indexation) Determination 2018

 

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (September 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 supplements payable to approved providers of aged care services in line with changes to consumer price index (CPI). The legislative instrument also increases the amount of basic subsidy payable to approved providers of residential 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 residential 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 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.

 

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, Minister for Youth and Sport

 

Overview

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (September Indexation) Determination 2019 was enacted to amend the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014, and it was introduced to address the need for periodic adjustments to the subsidies payable to approved providers of aged care services in line with changes in the consumer price index (CPI). The determination was made under the authority of the Aged Care (Transitional Provisions) Act 1997 by the Minister for Aged Care and Senior Australians. The policy objective of this legislative instrument is to ensure that the supplements payable to approved providers are adjusted to reflect the movements in the non-labour costs of providers, thereby maintaining an adequate standard of living and the highest attainable standard of physical and mental health for the recipients of aged care services. This determination aligns with the general policy for indexation of aged care payments and has been deemed compatible with human rights as it supports the right to an adequate standard of living and the right to the highest attainable standard of physical and mental health, as recognised under international human rights instruments. The amendments aim to assist with the costs of providing care to people with conditions of frailty or disability who require assistance, particularly those who are financially disadvantaged.

Scope and Application

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (September Indexation) Determination 2019 amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014, affecting the amounts of subsidies and supplements payable to approved providers of aged care services under the Aged Care (Transitional Provisions) Act 1997. This legislation applies to approved providers who are authorised to provide aged care services to continuing care recipients, which includes individuals who have been receiving care in an aged care service since before 1 July 2014 and have not left the service 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 that date. The provisions of this amendment apply nationally, as it is a Commonwealth Act. The Act does not explicitly provide for exclusions or exemptions, but the determination is tailored to the specific needs of approved providers and continuing care recipients, thus implicitly excluding those who do not meet these criteria. The Act's application may be further refined through subordinate instruments, which may provide additional details or exceptions not covered in the primary legislation. The primary objective of this legislative instrument is to adjust the amounts of supplements payable to approved providers in line with changes to the consumer price index (CPI), thereby ensuring that the financial support keeps pace with inflation. This determination is necessary to maintain the adequacy of care provided to continuing care recipients and to support the financial sustainability of aged care providers. The determination is compatible with human rights, particularly the right to an adequate standard of living and the right to the highest attainable standard of physical and mental health, as it ensures that providers can continue to offer quality care to those who need it most.

Key Provisions

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (September Indexation) Determination 2019 (the Determination) amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 (the 2014 Determination). The 2014 Determination sets out the amounts of subsidy and supplements payable to approved providers of aged care services under the Aged Care (Transitional Provisions) Act 1997 (the Act). The Determination increases these amounts to reflect changes in the consumer price index (CPI), and thus ensures that the cost of providing aged care services is adequately covered. Specifically, it indexes the amounts of the accommodation supplement, concessional resident supplement, charge exempt resident supplement, respite supplement, transitional supplement, transitional accommodation supplement, and pensioner supplement (section 4). The Determination imposes several obligations on parties. First, approved providers of aged care services must comply with the updated subsidy and supplement amounts set out in the Determination. This means they must adjust their billing practices to reflect the new rates from the commencement date of 20 September 2019. Secondly, the Minister for Aged Care and Senior Australians, who has the authority to make the Determination, must ensure that the indexation reflects accurate CPI changes and that the increases are disseminated to all relevant providers. This ensures transparency and compliance with the legislative requirements (section 3). There are no explicit offences or penalties outlined in the Determination itself. However, failure to comply with the updated subsidy and supplement rates could lead to disputes and potential legal actions between the approved providers and the Department of Health or other governing bodies. While the Determination does not specify civil or criminal penalties, non-compliance with such legislative instruments can result in financial penalties, audits, and reputational damage for the providers. It is also worth noting that any associated Act, such as the Aged Care Act 1997, may impose its own penalties for non-compliance with funding and payment provisions (section 33(3) of the Acts Interpretation Act 1901). The Determination is compatible with human rights as it promotes the right to an adequate standard of living and the highest attainable standard of physical and mental health. It ensures that approved providers receive adequate financial support to care for individuals with frailty or disability, thereby upholding the rights enshrined in the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. The Determination's indexation approach, based on well-established CPI calculations, demonstrates a commitment to fairness and equity in the provision of aged care services.

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