EXPLANATORY STATEMENT
Select Legislative Instrument No. 255, 2013
Issued by the authority of the Assistant Minister for Social Services
Australian Aged Care Quality Agency (Transitional Provisions) Act 2013
Australian Aged Care Quality Agency (Transitional Provisions) Regulation 2013
Item 18 of Schedule 1 to the Australian Aged Care Quality Agency (Transitional Provisions) Act 2013 (the Transitional Provisions Act) provides that the Governor‑General may make regulations prescribing matters which are required or permitted by Schedule 1 to the Transitional Provisions Act, or matters which are necessary or convenient in order to carry out or give effect to Schedule 1. The Governor‑General may also make regulations which prescribe matters of a transitional nature relating to the enactment of the Transitional Provisions Act or the Australian Aged Care Quality Agency Act 2013 (the Quality Agency Act).
The Quality Agency Act provides for the establishment of a new Australian Aged Care Quality Agency (the Quality Agency) on 1 January 2014. This new body will be the sole agency providers of Australian Government funded aged care will deal with in relation to quality assurance of the aged care services they deliver. The new Quality Agency will replace the Aged Care Standards and Accreditation Agency Ltd (ACSAA Ltd).
The purpose of the Transitional Provisions Act is to provide for transitional matters such as the transfer of the assets, liabilities and records of ACSAA Ltd to the Commonwealth. ACSAA Ltd is a public company limited by guarantee and subject to the Commonwealth Authorities and Companies Act 1997. The Commonwealth is the sole member of ACSAA Ltd. The new Quality Agency will be a prescribed agency under the Financial Management and Accountability Act 1997.
The Quality Agency will commence carrying out functions relating to residential aged care services on 1 January 2014 and functions relating to home care services on 1 July 2014. Prior to 1 July 2014, functions relating to home care services will be performed by the Department of Social Services.
The Australian Aged Care Quality Agency (Transitional Provisions) Regulation 2013
(the Regulation) deals with processes that are underway, but are not completed, prior to 1 January 2014. These matters include: decisions made by ACSAA Ltd prior to 1 January 2014 but not yet notified to relevant parties; site audits of residential care services commenced but not completed prior to that date; arrangements that have been made for ongoing monitoring of services after 1 January 2014; maintenance of the registration of quality auditors registered prior to 1 January 2014 and reconsideration and review of decisions made by ACSAA Ltd. The Regulation provides for the new Quality Agency to deal with and finalise these matters.
Details of the Regulation are set out in Attachment A.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The Australian Aged Care Quality Agency (Transitional Provisions) Act 2013 and the Australian Aged Care Quality Agency Act 2013 were developed in close consultation with the aged care sector, including consumers, industry and professional bodies.
The creation of this instrument flows from these Acts, and the creation of the Quality Agency.
Consultation on the legislation, including delegated legislation, commenced in November 2012, with the public release of a paper providing an overview of the legislative changes. A video presentation detailing the amendments was also made available to assist with public understanding of the changes.
During November and December 2012, the Department held briefing sessions in Melbourne, Sydney and Canberra on the changes. In March and April 2013 the Department held further briefing sessions across Australia to provide information and to explain in detail, the legislative changes passed by the Parliament in June 2013.
Specific public consultation on the Exposure Drafts of the Quality Agency Principles 2013 and the Quality Agency Reporting Principles 2013 was undertaken from 24 October until 8 November 2013.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 14686).
Commencement
The Regulation commences on 1 January 2014.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights (the Statement) has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. A copy of the Statement is at Attachment B.
ATTACHMENT A
Details of the Australian Aged Care Quality Agency (Transitional Provisions) Regulation 2013
Part 1 – Preliminary
Section 1
Section 1 states that the name of the Regulation is Australian Aged Care Quality Agency (Transitional Provisions) Regulation 2013.
Section 2
This section provides for the Regulation to commence on 1 January 2014.
Section 3
This section provides that the Regulation is made under the Item 18 of Schedule 1 to the Australian Aged Care Quality Agency (Transitional Provisions) Act 2013.
Section 4
Section 4 sets out definitions of terms that are relied on in other provisions throughout the Regulation.
Part 2 – Decisions made by accreditation body
Section 5
This section provides for dealing with decisions made by ACSAA Ltd about a residential care service before 1 January 2014 in relation to which ACSAA Ltd had not notified the approved provider of the decision or given the approved provider any required information or documents.
The Chief Executive Officer (CEO) of the Quality Agency must, within 14 days after 1 January 2014, notify the approved provider, in writing, of ACSAA Ltd’s decision and give the approved provider any other information or documents which are required to be given to the approved provider under the Accreditation Grant Principles 2011.
Section 6
This section provides for dealing with decisions made by ACSAA Ltd about a residential care service before 1 January 2014 if ACSAA Ltd has not notified the Secretary of the Department of Social Services (the Secretary) of the decision.
The CEO of the Quality Agency must, within 14 days after 1 January 2014, notify the Secretary, in writing, of ACSAA Ltd’s decision and the matters relating to the decision.
Section 7
This section makes provisions for dealing with reconsideration decisions made by ACSAA Ltd about a residential care service before 1 January 2014 if ACSAA Ltd has not notified the person who sought reconsideration of the decision or given the person any required information or documents.
The CEO of the Quality Agency is required to notify the person, in writing, of ACSAA Ltd’s decision and give the person any other information or documents which are required to be given to the person. The time period for notifying the person is either within 14 days after 1 January 2014 or, in the case of reconsideration of a decision to refuse to accredit a commencing service or an accredited service or a decision to revoke the accreditation of an accredited service, within 56 days after ACSAA Ltd commenced its reconsideration of the decision, if that time period ends more than 14 days after 1 January 2014.
Section 8
This section makes provisions for dealing with reconsideration decisions made by ACSAA Ltd about a residential care service before 1 January 2014 if ACSAA Ltd has not notified the Secretary of the reconsideration decision.
The CEO of the Quality Agency is required to notify the Secretary, in writing, of ACSAA Ltd’s decision. The time period for notifying the Secretary is the same time period as would apply to notification of the decision under section 6A.
Part 3 – Site audits
Section 9
This section provides for dealing with re-accreditation of an accredited service where an assessment team for a site audit may have been created before the commencement day, but the audit had not been completed.
If an accredited service has applied to ACSAA Ltd for re-accreditation of a residential care service and the site audit has not been completed, the Quality Agency will take over the process. The assessment team is taken to be appointed under the Quality Agency Principles made by the Minister under section 53 of the Quality Agency Act. Anything that was done by, or in relation to ACSAA Ltd, the approved provider, the assessment team or another person under a provision of the Accreditation Grant Principles made under section 96-1 of the Aged Care Act 1997 for the purpose of the site audit is taken to have been done by the CEO of the Quality Agency, the approved provider, the assessment team or another person under the Quality Agency Principles.
Section 10
This section provides for dealing with re-accreditation of an accredited service where a site audit may have been completed before the commencement day, but the accreditation decision had not been made before 1 January 2014.
The Quality Agency will take over any undecided decisions and deal with the decision as if the application for re-accreditation was made to the Quality Agency. The approved provider will not be required to submit a new request for re‑accreditation to the Quality Agency, as documents relating to the request will be transferred from ACSAA Ltd to the Commonwealth under the Transitional Provisions Act.
The Quality Agency will deal with the application for re-accreditation under the Quality Agency Principles.
Section 11
This section provides for dealing with an objection to the appointment of a member of an assessment team for a site audit if no decision on the objection has been made before the commencement day. The objection will be treated as if it was made to the CEO of the Quality Agency, on 1 January 2014, and it will be dealt with in accordance with the Quality Agency Principles. The CEO must, within 7 days of the objection being made, notify the approved provider of the decision to:
- accept the objection (and remove the person from the team). In this case, the CEO may appoint another person to the team to replace a person removed; or
- reject the objection. In this case the approved provider making the objection may seek reconsideration of a decision to reject the objection.
This section also makes provision for dealing with an objection to the appointment of a member of an assessment team for a site audit if a decision on the objection has been made but the approved provider was not notified of the decision before the commencement day.
The CEO of the Quality Agency must notify the approved provider, in writing, within 7 days of 1 January 2014, of the decision and, if the objection was accepted and another person was appointed to the assessment team, the new assessor’s full name.
If the decision was to reject the objection to the appointment of a member of an assessment team, the decision may be reconsidered and reviewed under the Quality Agency Principles.
Part 4 – Monitoring of accredited services
Section 12
This section provides for dealing with arrangements made before 1 January 2014 by the accreditation body for assessment contacts where some or all of the assessments contacts were scheduled to take place on or after 1 January 2014.
The Quality Agency Principles apply in relation to the arrangements for assessment contact as if the CEO of the Quality Agency had made the arrangements. Assessment contacts are any form of contact (other than a site or review audit) between the Quality Agency and an approved provider for the purposes of: assessment of performance against the relevant standards; assistance with continuous improvement; identifying whether a review audit is required; or giving the approved provider information or education about the accreditation process and requirements.
Section 13
This section provides for dealing with arrangements made by ACSAA Ltd for a review audit to be conducted, or where the Secretary had requested ACSSA Ltd to arrange a review audit and the assessment team had not been created by
1 January 2014.
If ACSAA Ltd had arranged a review audit, or the Secretary had requested ACSAA Ltd to arrange a review audit, but the assessment team had not been created by 1 January 2014, the Quality Agency will take over the process as if the CEO of the Quality Agency had decided to arrange a review audit or the Secretary had requested the CEO to arrange for a review audit of the service to be conducted.
Section 14
This section provides for dealing with arrangements where an assessment team had been created to conduct a review audit and the review audit had not been completed, or the assessment team had not given ACSAA Ltd and the approved provider the reports required by the Accreditation Grant Principles.
The new Quality Agency Principles will apply in relation to the accredited service and review audit. The assessment team will be taken to be appointed under the Quality Agency Principles, and therefore anything done by or in relation to the review audit will be taken to be done by or in relation to the CEO of the Quality Agency, the assessment team or the approved provider.
Section 15
This section provides for dealing with arrangements where an assessment team had conducted a review audit and the assessment team had given ACSAA Ltd and the approved provider the reports required by the Accreditation Grant Principles, but ACSAA Ltd had not made a decision about the accreditation of the service before 1 January 2014.
The Quality Agency Principles will apply in relation to the accreditation of the service as if the review audit had been conducted and the reports about the review audit had been given to the CEO of the Quality Agency and approved provider under those Principles.
Part 5 – Registration of quality assessors
Section 16
This section provides for dealing with arrangements where a person was registered as a quality assessor under the Accreditation Grant Principles and the registration was in force immediately before the commencement day.
The person will be taken to be registered as a quality assessor by the CEO of the Quality Agency in accordance with the Quality Agency Principles for the balance of their registration period. For example, if the quality assessor was registered on
1 October for a period of one year they will continue to be registered until
30 September 2014.
Section 17
This section provides for dealing with arrangements where the registrar had made a decision under the Accreditation Grant Principles to:
- register a person as a quality assessor;
- not to register a person as a quality assessor;
- to register a person as a quality assessor for a further period; or
- to remove a person’s name from the register of quality assessors;
but had not before 1 January 2014 notified the person of the decision or the reasons for the decision.
The CEO of the Quality Agency must, as soon as practicable after 1 January 2014, notify the person of the registrar’s decisions and the reasons for the decision.
If the decision was to remove the person’s name from the register of quality assessors the decision may be reconsidered or reviewed under the Quality Agency Principles as if it were a decision by the CEO of the Quality Agency.
Part 6 – Dealing with non-compliance
Section 18
This section provides for situations where ACSAA Ltd was required under the Accreditation Grant Principles, to give the approved provider of an accredited service, information, evidence and a statement relating to a failure to comply with the Accreditation Standards and ACSAA Ltd had not done so.
The CEO of the Quality Agency must, as soon as possible after 1 January 2014, give the approved provider, in writing, information, evidence and a statement relating to failure to comply with the Accreditation Standards. The approved provider must revise a plan for continuous improvement for the service in accordance with the directions in the notice within 14 days of receiving the notice.
This section also provides for situations where ACSAA Ltd was required under the Accreditation Grant Principles to give the Secretary information, evidence and a statement relating to an approved provider’s failure to comply with the Accreditation Standards and had not done so.
The CEO of the Quality Agency must, as soon as possible after 1 January 2014, give the Secretary, in writing, information, evidence and a statement relating to failure to comply with the Accreditation Standards.
Section 19
This section provides for situations where ACSAA Ltd, under the Accreditation Grant Principles, requested an approved provider of an accredited service to make a copy of the plan for continuous improvement for the service available to ACSAA Ltd and the approved provider had not done so before 1 January 2014.
The approved provider is required to deal with the request as if it were a request from the CEO of the Quality Agency under the Quality Agency Principles.
Section 20
This section provides for situations where ACSAA Ltd, under the Accreditation Grant Principles, was required to give the Secretary information in relation to a residential care service and ACSAA Ltd had not provided the information before 1 January 2014.
The CEO of the Quality Agency must, within 14 days of 1 January 2014, give the information, in writing, to the Secretary.
This section also provides for situations where ACSAA Ltd, under the Accreditation Grant Principles, was required to give information to an approved provider of an accredited service and ACSAA Ltd had not provided the information before 1 January 2014.
The CEO of the Quality Agency must, within 14 days of 1 January 2014, give the information, in writing, to the approved provider.
Section 21
This section provides for dealing with arrangements where an approved provider of an accredited service, under the Accreditation Grant Principles, had been given a timetable for making improvements in relation to the service, and the CEO of the Quality Agency after 1 January 2014, the CEO of the Quality Agency is still not satisfied that the level of care and services provided by the services complies with the Accreditation Standards. This applies to situations where the period for making improvements had not expired before 1 January 2014 and those where the CEO of the Quality Agency had, on or after 1 January 2014, granted an extension to the period.
The CEO of the Quality Agency must give the Secretary and the approved provider as soon as practicable, but not later than 14 days after the period granted to the approved provider to make improvements, written notice setting out the reasons why the CEO of the Quality Agency is not satisfied, the details of the evidence relied on by the CEO of the Quality Agency to support the finding, and any other relevant information.
Part 7 – Reconsideration and review
Section 22
This section provides for dealing with arrangements where a person had, in accordance with the Accreditation Grant Principles, requested ACSAA Ltd to reconsider a decision and, as at 1 January 2014, ACSAA Ltd had not reconsidered the decision as requested.
The Quality Agency will deal with any undecided request for reconsideration of decisions. The person will not be required to submit a new request to the Quality Agency, as documents relating to the request will be transferred from ACSAA Ltd to the Commonwealth under the Transitional Provisions Act. The CEO of the Quality Agency will deal with the request under the Quality Agency Principles.
Section 23
This section provides for dealing with arrangements where, on or after 1 January 2014, the CEO of the Quality Agency notifies a person of a decision made by ACSAA Ltd. The Quality Agency Principles will apply in relation to the decision as if it were a decision made by the CEO of the Quality Agency.
Section 24
This section ensures provisions for review by the Administrative Appeals Tribunal of reconsideration decisions made by ACSAA Ltd under subsection 2.69(1) or 2.70(3) of the Accreditation Grant Principles 2011 continue. Subsection 2.69(1) provides for reconsideration of reviewable decisions made by ACSAA Ltd at the request of a person who has standing to apply for reconsideration, while subsection 2.70(3) provides for reconsideration of reviewable decisions at ACSAA Ltd’s own initiative.
Part 8 – Other matters
Section 25
This section provides for situations where ACSAA Ltd was required to publish, in accordance with the Accreditation Grant Principles, a decision or a reconsideration decision and any related report, or a decision made by the Administrative Appeals Tribunal, and ACSAA Ltd had not published the decision by 1 January 2014.
The CEO of the Quality Agency is required to publish the decision and any related reports, in accordance with the new Quality Agency Principles, as if the decision had been made, or the report had been prepared, under those Principles.
Section 26
This section provides for situations where, under the Accreditation Grant Principles, the Minister had asked ACSAA Ltd for information about an aspect of the accreditation body’s operation and ACSAA Ltd had not given the information to the Minister before 1 January 2014.
The CEO of the Quality Agency is required, as soon as practicable after 1 January 2014, to provide the information, in writing, to the Minister.
This Section also provides that, if the Minister asks the CEO of the Quality Agency for information about ACSAA Ltd’s operations, the CEO of the Quality Agency must, as soon as practicable after 1 January 2014, provide the information, in writing, to the Minister.
Section 27
This section provides for situations where, under the Accreditation Grant Principles, the Secretary had asked ACSAA Ltd for protected information and ACSAA Ltd had not given the information to the Secretary before 31 December 2013.
The CEO of the Quality Agency is required, as soon as practicable after 1 January 2014, to provide the information, in writing, to the Secretary.
This section also provides that if the Secretary asks the CEO of the Quality Agency for protected information acquired by ACSAA Ltd under, or for the purposes of, the Accreditation Grant Principles, then the CEO of the Quality Agency is required, as soon as practicable after 1 January 2014, to provide the information, in writing, to the Secretary.
Section 28
This section provides, for the avoidance of doubt, that the repeal of the Accreditation Grant principles does not affect the validity of anything done by, or in relation to, ACSAA Ltd under the Accreditation Grant principles before 1 January 2014.
This section also provides that any decision made by ACSAA Ltd before 1 January 2014 that was intended to take effect on a day that is on or after 1 January 2014 will still take effect on the relevant day in accordance with ACSAA Ltd’s decision.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Aged Care Quality Agency (Transitional Provisions) Regulation 2013
The Regulation 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 Regulation
The Australian Aged Care Quality Agency Act 2013 provides for the establishment of a new Australian Aged Care Quality Agency (the Quality Agency) on 1 January 2014. This new body will be the sole agency providers of Australian Government funded aged care will deal with in relation to the quality assurance of the aged care services they deliver. The new Quality Agency will replace the Aged Care Standards and Accreditation Agency Ltd (ACSAA Ltd).
The Australian Aged Care Quality Agency (Transitional Provisions) Act 2013 (the Transitional Provisions Act) provides for transitional matters such as the transfer of the assets, liabilities and records of ACSAA Ltd to the Commonwealth. ACSAA Ltd is a public company limited by guarantee and subject to the Commonwealth Authorities and Companies Act 1997. The new Quality Agency will be a prescribed agency under the Financial Management and Accountability Act 1997.
The Australian Aged Care Quality Agency (Transitional Provisions) Regulation 2013 made under the Transitional Provisions Act, deals with processes that are underway, but are not completed, prior to 1 January 2014. These matters include decisions made by ACSAA Ltd prior to 1 January 2014 but not yet notified to relevant parties, site audits of residential care services commenced but not completed prior to that date, arrangements that have been made for ongoing monitoring of services after 1 January 2014, maintenance of the registration of quality auditors registered prior to 1 January 2014 and reconsideration and review of decisions made by ACSAA Ltd. The Regulation provides for the new Quality Agency to deal with and finalise these matters.
Human Rights Implications
The Regulation engages the human right to the enjoyment of the highest attainable standard of physical and mental health as set out in Article 12 of the International covenant on Economic, Social and Cultural Rights. The Regulation is designed to ensure a seamless transition of regulatory functions from ACSAA Ltd to the new Quality Agency, which will promote a high quality of care and appropriate outcomes for the recipients of aged care services.
Conclusion
The Regulation is compatible with human rights as it promotes the human right to health.
Senator the Hon Mitch Fifield, Assistant Minister for Social Services