EXPLANATORY STATEMENT
Issued by the authority of the Minister for Aged Care
Aged Care Act 1997
Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Short-term Restorative Care) Determination 2016
Purpose
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.
The Transitional Provisions Act allows the Minister to determine, by legislative instrument, the amounts of subsidy and supplements payable to an approved provider for the provision of each type of aged care.
Currently the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 (the Transitional Provisions Determination) sets out the amount of subsidy payable to an approved provider with regards to continuing care recipients.
This Determination amends the Transitional Provisions Determination to add the method for working out the amount of flexible care subsidy payable for a continuing care recipient who is being provided with short-term restorative care, which is a new kind of flexible care being established by the Aged Care Legislation Amendment (Short‑term Restorative Care) Principles 2016.
Background
As part of the 2015-16 Budget measure Aged Care – Increasing short term restorative care places, the Australian Government announced the expansion of flexible aged care initiatives to include a new kind of flexible care called short-term restorative care. The budget measure is implemented primarily through changes to the Principles made under the Aged Care Act 1997.
This instrument is necessary to give effect to short-term restorative care by specifying the amounts of flexible care subsidy that will be payable to approved providers who provide short-term restorative care to continuing care recipients.
Commencement
The instrument commences on the same time as the Aged Care Legislation Amendment (Short term Restorative Care) Principles 2016. That instrument commences on the day after it is registered. The purpose of aligning the commencement of this instrument with that instrument is to ensure that all legislative amendments required for the implementation of the short-term restorative care programme will commence on the same date.
Consultation
In developing the policy design of the short-term restorative care programme, the Department held a public consultation process including the release of a public policy consultation paper which sought feedback from the aged care sector, external workshops and a webinar. The Department received submissions from individuals and a range of organisations including aged care sector peak body representatives, state and territory governments, medical experts, allied health, Aboriginal health services and individual aged care sector providers from across the country, including from rural and remote areas. Stakeholder feedback received in these submissions and workshops informed the final design of the short-term restorative care programme.
In preparing this instrument, and the other instruments that relate to this policy initiative, the Department also consulted with the Department of Veterans’ Affairs, the Department of Human Services and the Australian Aged Care Quality Agency on the parts of the changes relevant to each body. As this Determination does not include any substantial policy issues (because it focuses on prescribing amounts of subsidy) an exposure draft of the Determination was not released for public comment.
Regulation Impact Statement (RIS)
Following consultation with the Office of Best Practice Regulation (OBPR), a RIS is not required as per OPBR reference number 18241.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Explanation of the provisions
Section 1
This section provides how the proposed instrument is to be cited, that is, as Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Short-term Restorative Care) Determination 2016.
Section 2
This section sets out the commencement of the Determination. The commencement date is the same time as the Aged Care Legislation Amendment (Short term Restorative Care) Principles 2016 commence.
Section 3
This section provides that the authority for making the Determination. This instrument is made under section 52‑1 of the Aged Care (Transitional Provisions) Act 1997.
Under subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act), 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.
Accordingly, the power in section 52-1 of the Transitional Provisions Act is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to vary the Transitional Provisions Determination.
Section 4
This section 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
This item adds definitions for short-term restorative care, innovative care service, multi-purpose service and transition care to the definitions section of the determination. The definitions refer the reader to the meaning given to the terms by the Subsidy Principles 2014. The definition of transition care, which is repealed by item 5 below, is moved to section 5 because the term is used in both Chapters 3 and 4 of the Determination. Definitions for innovative care service and multi-purpose service are included because those terms are used in section 93 of the Determination.
Items 2, 3 and 4
These items amend sections 80 and 81 to remove references to “Part” and replace them with “Chapter” to reflect the wider relevance of the definitions specified in section 81.
Item 5
This item repeals the definition of transition care. The definition has been moved to section 5 by item 1 above.
Item 6
This item adds details of the amount of flexible care subsidy that is payable for a day for a care recipient who is being provided with short-term restorative care through a flexible care service. The amount is the same amount as would apply to a care recipient who is not a continuing care recipient and for whom subsidy is payable under the Aged Care Act 1997. This approach is consistent with the calculation of subsidy for continuing care recipients receiving other kinds of flexible care, where the approved provider receives the same amount of subsidy regardless of whether the care recipient entered care before or after 1 July 2014.
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 (Short-term Restorative Care) Determination 2016
This Determination 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 2001.
Overview of the Legislative Instrument
This legislative instrument amends the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 to specify the amount of flexible care subsidy that will be payable to approved providers in respect of a continuing care recipient who is being provided with short-term restorative care, which is a new kind of flexible care being established by the Aged Care Legislation Amendment (Short‑term Restorative Care) Principles 2016.
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 concerns the amount of flexible 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 specifies the amount of flexible care subsidy that is payable to approved providers for care and services in the form of short-term restorative care provided to continuing care recipients (persons who entered an aged care service prior to 1 July 2014).
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.
The Hon Sussan Ley MP
Minister for Aged Care