Approval of Care Recipients Amendment Principles 2008 (No. 2)

Administered by Department of Health, Disability and Ageing

Legislation au F2008L04692 Not in force Legislative Instrument

Legislation content

 

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Ageing

 

Aged Care Act 1997

 

Approval of Care Recipients Amendment Principles 2008 (No. 2)

 

The Aged Care Act 1997 (the Act) provides for 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. 

 

Subsection 96-1(1) of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act.  One set of Principles made under the Act is the Approval of Care Recipients Principles 1997 (the Approval of Care Recipients Principles).

 

The purpose of the Approval of Care Recipients Amendment Principles 2008 (No. 2) (the Amending Principles) is detailed below.  The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Approval of Care Recipients Amendment Principles 2008 (No. 2)

 

The Amending Principles make three changes in respect of assessments by Aged Care Assessment Team (ACATs), as follows:

 

  • to ensure that people eligible for extended aged care at home (EACH) and extended aged care at home - dementia (EACHD) can also receive a lower level of care in the community (consistent with the arrangements in residential care under which a person approved as a recipient of a high level of residential care may receive residential care at any classification level);

 

  • to ensure that approvals for EACH and EACHD are non-lapsing.  This is consistent with the changes made to the Aged Care Act 1997 through the Aged Care Amendment (2008 Measures No. 2) Act 2008.  These Act amendments provide that a person’s approval as a recipient of care does not lapse if the care in respect of which he or she is approved is (relevantly) for residential care that is not limited to a low level of residential care; and

 

  • to make consequential changes to existing provisions to align the Principles with the changes to the Act relating to non-lapsing of certain types of approvals.

 

Consultation

The policies reflected in the Amending Principles were the subject of consultation with the aged care sector through the Ageing Consultative Committee, which comprises peak industry, professional and consumer bodies.  Sector feedback was considered in the development and fine tuning of the complex legislative and policy reform process.

 

Regulation Impact Statement

The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 9978).

Details of the amendments to the Approval of Care Recipients Principles are listed at Attachment A.

ATTACHMENT A

NOTES ON CLAUSES

 

Clause 1 states that the name of the Amending Principles is the Approval of Care Recipients Amendment Principles 2008 (No. 2).

 

Clause 2 states that the Amending Principles commence on the commencement of the Aged Care Amendment (2008 Measures No. 2) Act 2008.

 

Clause 3 states that Schedule 1 amends the Approval of Care Recipients Principles.

 

Schedule 1 Amendments

 

Items 1 to 4

 

These items achieves the policy intent of ensuring that if a person is:

  • approved as a recipient of flexible care in the form of EACHD, the limitation of the approval does not prevent the person from receiving EACH or community care; or
  • approved as a recipient of flexible care in the form of EACH, the limitation of the approval does not prevent the person receiving community care.

 

The items achieve this by:

 

  • including a note at the end of subsection 5.6(1) (which relates to eligibly for community care) that draws readers attention to the fact that a person eligible for EACH or EACHD will also be eligible for community care (as achieved by the amendments described in items 2 and 3);

 

  • inserting a new subsection 5.7(1A) that provides that a person who is eligible to receive flexible care in the form of EACH is also eligible for community care (item 2);

 

  • inserting a new subsection 5.7AA(1A) that provides that a person who is eligible to receive flexible care in the form of EACHD is also eligible for EACH and community care (item 3);

 

  • replacing subsection 5.9(3) (which relates to matters and circumstances to which approval of a person as a care recipient may be limited) with three new subsections (item 4) that provide that:

 

  • approval of a person as a recipient of residential care may be limited to respite care if respite care is appropriate to the needs of the person, the person’s carer or both;  
  • if a person is approved as a recipient of EACHD, the limitation of the approval does not prevent the person from receiving EACH or community care; and
  • if a person is approved as a recipient of EACH, the limitation of the approval does not prevent the person from receiving community care.

 

 

 


Item 5

Item 70 of the Aged Care Amendment (2008 Measures No. 2) Act 2008 amended section 23-3 of the Aged Care Act 1997 to provide that a person’s approval as a recipient of care does not lapse if:

  • the care in respect of which he or she is approved is limited to residential care provided as respite care; or

 

  • if the approval is for residential care other than residential care provided as respite care — the care in respect of which he or she is approved is not limited to a low level of residential care; or

 

  • if the care in respect of which he or she is approved is flexible care — the care is specified in the Flexible Care Subsidy Principles.

 

For the purposes of 23-3(1A)(c), this item (item 5) amends the Principles to specify two kinds of flexible care in respect of which an approval does not lapse — EACH and EACHD. 

 

Item 6

This item makes consequential changes to section 5.14 of the Principles so that it only applies to approvals for types of care that continue to be lapsing and not to those that are no longer lapsing as the result of the inclusion of subsection 23-3(1A) in the Aged Care Act 1997. 

 

Section 5.14 is amended to remove the references to respite care provided as residential care (because respite care is now non-lapsing in accordance with new section 23-3(1A)(a)) and change the references to residential care so that they are references to low level residential care only, noting that approvals for high level residential care are non-lapsing in accordance with new paragraph 23-3(1A)(b) of the Aged Care Act 1997.

 

 

Overview

The Aged Care Act 1997, enacted by the Australian Parliament, establishes the framework for the funding and provision of aged care services, enabling eligible individuals to receive care through approved providers who can claim subsidy payments. To refine and update the existing provisions, the Approval of Care Recipients Amendment Principles 2008 (No. 2) was introduced by the Minister for Ageing as a legislative instrument under the Legislative Instruments Act 2003. The primary objective of these Amending Principles is to address and rectify certain gaps in the existing legislative framework regarding the assessments conducted by Aged Care Assessment Teams (ACATs). Specifically, the Amending Principles aim to ensure that individuals eligible for extended aged care at home (EACH) and extended aged care at home - dementia (EACHD) can receive lower levels of community care, to make EACH and EACHD approvals non-lapsing, and to align existing provisions with the recent legislative amendments. These changes were developed in consultation with the aged care sector and have been reviewed to ensure they meet the intended policy objectives.

Scope and Application

The Approval of Care Recipients Amendment Principles 2008 (No. 2) pertains to the Aged Care Act 1997, which provides for the funding of aged care services in Australia. These principles apply to approved providers and approved care recipients under the Act, ensuring that eligible individuals can receive a range of care services without their approvals lapsing under certain conditions. The principles are designed to align with amendments made to the Aged Care Act 1997 by the Aged Care Amendment (2008 Measures No. 2) Act 2008, particularly concerning non-lapsing approvals for certain types of care. The principles also ensure that individuals approved for extended aged care at home (EACH) and extended aged care at home - dementia (EACHD) can receive lower levels of care in the community. The principles are applicable nationally, as they are extensions of the Aged Care Act 1997, which is a Commonwealth Act. There are no specific exclusions mentioned in the explanatory statement, but the principles are intended to streamline the care approval process and ensure consistency with recent legislative changes. The principles come into effect on the commencement of the Aged Care Amendment (2008 Measures No. 2) Act 2008, and any further application or interpretation of these principles may be addressed through subordinate instruments as necessary.

Key Provisions

The Approval of Care Recipients Amendment Principles 2008 (No. 2) (the Amending Principles) modifies the Approval of Care Recipients Principles 1997 to address three main areas related to assessments by Aged Care Assessment Teams (ACATs) (subsection 5.6(1), 5.7(1A), 5.7AA(1A), and 5.9(3)). Firstly, the amendments ensure that individuals eligible for extended aged care at home (EACH) and extended aged care at home - dementia (EACHD) can also receive a lower level of care in the community (subsection 5.7(1A) and 5.7AA(1A)). Secondly, the approvals for EACH and EACHD are made non-lapsing, meaning they do not expire unless specified conditions are met (subsection 5.9(3)). Lastly, the Amending Principles include consequential changes to existing provisions to align them with the amendments made to the Aged Care Act 1997 (subsection 23-3(1A)). These amendments ensure consistency with the arrangements in residential care, where a person approved as a recipient of a high level of residential care may receive residential care at any classification level. The Amending Principles impose several obligations and requirements on the parties involved. Firstly, it mandates that ACATs must ensure that individuals eligible for EACH and EACHD are also eligible for lower levels of care in the community. Secondly, the Principles require that approvals for EACH and EACHD be non-lapsing unless specific conditions outlined in the Act are met (subsection 23-3(1A)). Additionally, the Principles necessitate that consequential changes be made to existing provisions to maintain alignment with the amendments to the Aged Care Act 1997. These obligations ensure that care recipients have consistent and non-expiring approvals, facilitating better care coordination and planning. The Amending Principles do not explicitly outline offences, penalties, or consequences for breaches. However, non-compliance with the requirements set forth in the Act and the Principles could potentially lead to administrative actions, such as the revocation of an approved provider's status or denial of subsidy payments. Furthermore, failure to adhere to the provisions may result in legal challenges or disputes between care recipients, providers, and the government. It is essential for all parties involved to understand and comply with the requirements to avoid any potential negative consequences.

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