EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Approval of Care Recipients Amendment (Home Care) Principle 2013
The Aged Care Act 1997 (the Act) provides for the regulation and funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments in respect of the care they provide to approved care recipients.
Section 96-1 of the Act allows for the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. Among the Principles made under section 96-1 are the Approval of Care Recipients Principles 1997 (the Principles). Item 198 in Part 2 to Schedule 1 of the Aged Care (Living Longer Living Better) Act 2013 allows for transitional matters relating to the approval of care recipients to be set out in the Principles.
The Principles deal with a number of matters that are important to the care recipient approval process described in Part 2.3 of the Act.
On 20 April 2012, the Government announced the Living Longer Living Better aged care reform package. As part of the reform, community care will be replaced with home care. Home care will consist of four levels of home care packages. Level 2 packages will be the equivalent of what is now known as a Community Aged Care Package (CACP), a kind of community care. Level 4 packages will be the equivalent of what is currently a kind of flexible care known as Extended Aged Care at Home (EACH).
The purpose of the Approval of Care Recipients Amendment (Home Care) Principle 2013 (the Amending Principle) is to make changes to the Principles to reflect the establishment of home care and to set out the eligibility requirements for a person to receive home care.
The Amending Principle also includes transitional provisions to support the seamless transition of people with approvals to receive community care, EACH or Extended Aged Care at Home – Dementia (EACH-D) that are in force immediately before the commencement of Schedule 1 to the Aged Care (Living Longer Living Better) Act 2013 to be taken to be approved to receive home care.
This Amending Principle is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
A number of the proposed amendments set out in this Amending Principle rely on amendments described in the Aged Care (Living Longer Living Better) Act 2013 which commence on 1 August 2013. This Amending Principle is being made in advance of this commencement date. This is possible in accordance with section 4 of the Acts Interpretation Act 1901, which allows for the exercise of powers between enactment and commencement of an Act including, for example, the power to make changes to delegated legislation which flow from changes made to the primary legislation (in this case, changes to the Aged Care Act 1997).
Consultation
The Living Longer Living Better aged care reform package was developed in close consultation with the aged care sector, including consumers, industry and professional bodies. As part of the reform, changes are needed to the Act. The changes to the Principles flow from the changes to the Act.
Consultation on the proposed changes to the Act, and to delegated legislation, commenced in November 2012, with the public release of a paper providing an overview of the proposed legislative changes.
A video presentation detailing the changes was also made available through the Living Longer Living Better website, to assist with public understanding of the proposed changes.
During November and December 2012, the Department of Health and Ageing (the Department) also held briefing sessions in Melbourne, Sydney and Canberra on the proposed changes.
Stakeholders and the general community were able to provide written comments during a four-week period (21 November – 21 December 2012). The comments were made publicly available on the Living Longer Living Better website, unless the author requested otherwise. The Department received 54 submissions from members of the public, peak bodies and approved providers in response to the published overview of legislative amendments. Submissions received via the consultation on the overview of the proposed legislative changes were used to inform drafting of the amending bills and the delegated legislation.
In March and April 2013, the Department held industry briefing sessions across Australia to provide information and to explain, in detail, the proposed legislative changes included in the package of Bills introduced into Parliament on 13 March 2013. The briefing sessions also outlined changes to delegated legislation such as these Amending Principles. For those who were unable to attend the briefings a copy of the presentation, supporting handouts, a detailed Questions and Answers document and an information video were made available on the Living Longer Living Better website.
The Home Care Packages Working Group was formed to provide advice to the Department on the new home care packages program. Draft Guidelines for home care packages were released in April 2013 for comment. Feedback from these consultation processes has contributed to this Amending Principle.
An exposure draft of the Amending Principle was made available on the Living Longer Living Better website in May 2013.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 14985).
Commencement
The Amending Principle commences on 1 August 2013.
ATTACHMENT
Details of the Approval of Care Recipients Amendment (Home Care) Principle 2013
Clause 1 states that the name of the Amending Principle is the Approval of Care Recipients Amendment (Home Care) Principle 2013.
Clause 2 states that the Amending Principle commences on 1 August 2013.
Clause 3 provides that the authority for the making of the Amending Principle is the Aged Care Act 1997 and the Aged Care (Living Longer Living Better) Act 2013.
Clause 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
Item 1 - Note before Part 1
This note outlines that Part 2.3 of the Aged Care Act 1997 (the Act) relates to the approval of care recipients and that the Principles deal with a number of matters regarding the approval of care recipients. This item substitutes references to ‘community care’ with ‘home care’ consequential to the removal of community care from the Act and the establishment of home care.
Item 2 - Section 5.3 (note)
The note to section 5.3 lists a number of terms that are defined in the Act. Consistent with current drafting conventions, terms that are used regularly within all aged care principles, such as ‘Secretary’ and ‘entry’, have been removed. These terms continue, for the purposes of the Principles, to have the meaning set out in the Dictionary in Schedule 1 to the Act. Terms used less commonly, such as ‘low level of residential care’, are specified in the note as expressions that are defined in the Act.
Item 3 - Section 5.4
Section 5.4 outlines the purpose of Part 2 of the Principles. The purpose of this Part is to specify the additional criteria that a person must meet to be eligible to receive residential care, community care or flexible care. This item replaces the term ‘community care’ with ‘home care,’ as a consequential amendment to the changes to the Act to create home care.
Item 4 - Sections 5.6 to 5.7AA
Sections 5.6, 5.7 and 5.7AA currently outline eligibility criteria which must be met for a person to receive community care or flexible care in the form of EACH or EACH-D. As these forms of aged care will be replaced by home care on 1 August 2013, this item repeals these existing sections and substitutes new sections which provide the eligibility criteria for home care.
Section 5.6 - Home care - levels 1 and 2
This section provides that a person is eligible to receive home care at level 1 or level 2 only if the person:
- is assessed as having needs that can only be met by a coordinated package of care services; and
- would be assessed, if the person applied for residential care, as eligible to receive at least a low level of residential care; and
- prefers to remain living at home; and
- is able to live at home with the support of home care at level 1 or level 2.
Section 5.7 - Home care - levels 3 and 4
This section provides that a person is eligible to receive home care at level 3 or level 4 only if the person:
- is assessed as having needs that can only be met by a coordinated package of care services; and
- would be assessed, if the person applied for residential care, as eligible to receive residential care that is not limited to a low level of residential care; and
- prefers to remain living at home; and
- is able to live at home with the support of home care at level 3 or level 4.
Item 5 - Section 5.9 (heading)
Section 5.9 relates to matters and circumstances to which approval of a person as a care recipient may be limited. This item amends the current heading to reflect that with the removal of EACH and EACH-D as kinds of flexible care, the amended section 5.9 will relate to residential care only.
Item 6 - Subsections 5.9(4) and (5)
Section 5.9 currently relates to matters and circumstances to which approval of a person as a care recipient may be limited for residential care, EACH and EACH-D.
Subsections 5.9(4) and (5) currently provide that, if a person is approved as a recipient of EACH, the limitation of the approval does not prevent the person from receiving community care; and if a person is approved as a recipient of EACH-D, the limitation of the approval does not prevent the person from receiving EACH or community care.
This item repeals subsections 5.9(4) and 5.9(5) as these types of packages will no longer exist on the commencement of this Amending Principle, being replaced by home care packages.
Item 7 – At the end of Part 3
This item inserts a new section to outline the limitations of approval for a person approved to receive home care.
Section 5.9A - Home care
This section provides that a home care approval may be limited to one of the following levels of home care: level 1 (basic care package); level 2 (low care package); level 3 (intermediate care package); level 4 (high care package), where level 4 is the highest level of home care and level 1 is the lowest.
If a person is approved for a particular level of home care, the person is also eligible to receive home care at a lower level. For example, a person approved to receive level 3 home care would be eligible to receive home care at level 1, level 2 or level 3.
Item 8 – After paragraph 5.12(a)
Section 5.12 outlines the purpose of Part 5 of the Principles. The purpose of Part 5 is to set out rules relating to the lapsing of approvals where care is not received within a certain time. This item inserts a new paragraph to specify that the Part also deals with the entry period for home care.
Item 9 – After paragraph 5.12(b)
This item renumbers the paragraphs in section 5.12 to account for the inclusion of a new paragraph (b) regarding the entry period for home care.
Item 10 – Section 5.13 (note)
Section 23-3 of the Act outlines the circumstances in which a person’s approval as a recipient of care does not lapse. This item repeals the note which states that for lapsing periods for other kinds of aged care the reader should refer to paragraph
23-3(1)(b) of the Act. This is because the lapsing period for home care will be set out in the Principles and not the Act.
Item 11 - Section 5.13A
Section 5.13A currently provides that, for the purposes of section 23-3(1A)(c) of the Act, approvals for EACH and EACH-D do not lapse. This item repeals section 5.13A, as EACH and EACH-D will be replaced with home care, and includes a new section 5.13A which deals with home care.
Section 5.13A - Entry period—home care
This section provides that for paragraph 23-3(1)(a) of the Act, the entry period for a person who is approved as a recipient of home care under subsection 22-1(2) of the Act is 2 years and one day beginning on the day after the approval was given.
This new section and amendments being made to section 23-3 of the Act on 1 July 2014 ensure that no approval for home care will ever lapse, whether it was given after the commencement of home care in the Act or given as an approval for community care or EACH and/or EACH-D and transitioned to an approval for home care at the relevant level on 1 August 2013.
Item 12 – At the end of the Principles
The item inserts a new Part to provide transitional provisions relating to the amendments made by Schedule 1 to the Aged Care (Living Longer Living Better) Act 2013 to introduce home care. These provisions ensure that existing approvals to receive community care or flexible care in the form of EACH or EACH-D are transitioned as approvals to receive a specified level of home care.
Part 6 – Transitional provisions
Section 5.15 - Definitions for Part 6
This section sets out definitions of EACH and EACH-D. These definitions are included for transitional purposes, to ensure that current approvals for EACH or EACH-D are transitioned to the appropriate level of home care. This section provides that these terms have the meaning given to them by sections 15.6 and 15.8 respectively of the Flexible Care Subsidy Principles 1997 as in force immediately before 1 August 2013.
Section 5.16 - Approval to receive flexible care
Subitem 198(2) of Schedule 1 to the Aged Care (Living Longer Living Better) Act 2013 enables the Principles to specify kinds of approval to receive flexible care that are taken to be approvals to receive home care. For the purposes of this subitem, EACH and EACH-D are specified. This means that approvals to receive EACH or EACH-D that were in force immediately before the commencement of Schedule 1 to the Aged Care (Living Longer Living Better)Act 2013 (that is, in force on 31 July 2013) will transition to approvals to receive home care.
Subitem 198(3) of Schedule 1 to the Aged Care (Living Longer Living Better) Act 2013 states that an approval to receive community care or flexible care that is taken to be an approval to receive home care is limited to one or more levels of care as specified in the Principles.
In addition to specifying kinds of flexible care approvals that will transition to approvals for home care, this section also states that an approval to receive EACH or EACH-D is taken to be an approval to receive home care at level 4. A person approved to receive level 4 home care may receive any level of home care.
Section 5.17 - Approval to receive community care
Subitem 198(3) of Schedule 1 to the Aged Care (Living Longer Living Better) Act 2013 states that an approval to receive community care or flexible care that is taken to be an approval to receive home care is also taken to be limited to one or more levels of care as specified in the Principles.
This section provides that an approval to receive community care that was in force immediately before the commencement of Schedule 1 to the Aged Care (Living Longer Living Better) Act 2013 (that is, in force on 31 July 2013) will transition to an approval to receive home care level 2. A person approved for home care level 2 is also eligible to receive home care level 1.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Approval of Care Recipients Amendment (Home Care) Principle 2013
This legislative instrument 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 the Legislative Instrument
The purpose of the Approval of Care Recipients Amendment (Home Care) Principle 2013 (the Legislative Instrument) is to make changes to the Principles to reflect the establishment of home care and to set out the eligibility requirements for a person to receive home care. The Legislative Instrument also includes transitional provisions to support the seamless transition of people with approvals to receive community care and/or extended aged care at home or extended aged care at home - dementia to receive home care.
Human Rights Implications
This Legislative Instrument engages 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 articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights and articles 25 and 28 of the Convention on the Rights of Persons with Disabilities. The Legislative Instrument ensures a seamless transition between existing and new arrangements and ensures that consistent and appropriate eligibility criteria are applied for approval of care recipients seeking access to home care. The Legislative Instrument also facilitates access to care by specifying that, once a person is approved to receive home care, the approval does not lapse. These measures support the right to an adequate standard of living by ensuring that transparent and consistent criteria are used to approve care recipients and that no-one is disadvantaged as the result to transitioning from the exiting types of care to the new home care.
Conclusion
This legislative instrument is compatible with human rights as it promotes the human right to health and the right to an adequate standard of living.
Senator the Hon Jacinta Collins
Minister for Mental Health and Ageing