EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
National Health Act 1953
Continence Aids Payment Scheme Variation 2013 (No. 3)
The National Health Act 1953 (the Act) is an act relating to the provision of pharmaceutical, sickness and hospital benefits, and of medical and dental services.
Section 12 of the Act provides that the Minister may, by legislative instrument, formulate a Continence Aids Payment Scheme, under which the Commonwealth makes payments as a contribution towards the cost of buying products that help manage incontinence.
Background
The Continence Aids Payment Scheme 2010 (CAPS) was introduced on 1 July 2010, replacing the former Continence Aids Assistance Scheme (CAAS). Assistance for eligible persons changed from the physical supply of subsidised continence aids under CAAS to a monetary payment under CAPS intended to contribute towards the purchase of continence aids.
Continence Aids Payment Scheme Variation 2013 (No. 3) (the Variation)
The Variation replaces a reference to an Extended Aged Care at Home (EACH) or Extended Aged Care at Home-Dementia (EACH-D) package with a reference to a home care package. This change is consequential to the enactment of the Aged Care (Living Longer Living Better) Act 2013.
Details of Variation
Item 1 of Schedule 1 substitutes a new subparagraph 4(2)(c)(ii) to replace the reference to an Extended Aged Care at Home (EACH) or Extended Aged Care at Home - Dementia
(EACH-D) package in subparagraph 4(2)(c)(ii) with a reference to a home care package.
This change results from amendments to the Aged Care Act 1997 made by the Aged Care (Living Longer Living Better) Act 2013 which replace community care and two forms of flexible care, Extended Aged Care at Home (EACH) and Extended Aged Care at
Home-Dementia (EACH-D), with home care.
The effect of the amendment made by this item is that, if a care recipient is receiving a home care package and the care recipient’s care plan includes continence products, the care recipient will not be eligible to receive a payment from the Commonwealth under the CAPS as a contribution towards the cost of purchasing continence products. The care recipient will not need to purchase continence products as the products will be supplied by the approved provider of the home care package under an agreement between the approved provider and the care recipient.
Consultation
As part of the Living Longer Living Better aged care reform package, extensive consultation was undertaken regarding the replacement of community care and certain forms of flexible care with home care, including consultation with Commonwealth Departments, the aged care industry, consumer groups, older Australians along with their families and carers and the broader community.
The changes to the CAPS are consequential to the implementation of the Living Longer Living Better reforms.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for this Variation (ID 14868).
Legislative instrument
The Variation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The instrument commences on 1 August 2013.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Continence Aids Payment Scheme Variation 2013 (No. 3)
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 Legislative Instrument
The Variation replaces a reference to an Extended Aged Care at Home (EACH) or Extended Aged Care at Home - Dementia (EACH-D) package with a reference to a home care package. This change is consequential to amendments made to the Aged Care Act 1997 by the Aged Care (Living Longer Living Better) Act 2013.
Human rights implications
This Legislative Instrument engages the right to equality and non-discrimination contained in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights and the right to health contained in Article 12 of that covenant. This Legislative Instrument also engages the rights of people with disabilities in the Covenant on the Rights of Persons with Disabilities, especially articles 3(b) and 4 which require Parties to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.
The Legislative Instrument limits the right to equality and non-discrimination by excluding care recipients who are receiving a home care package from participation in the CAPS if the care recipient’s care plan includes continence products.
This limitation on the right to equality and non-discrimination is designed to achieve the legitimate objective of ensuring that a person who is receiving continence aids as part of a care package subsidised by the Commonwealth under the Aged Care Act 1997 does not also receive a payment from the Commonwealth under the National Health Act 1953 which is intended as a contribution towards the purchase of continence aids, which would be a form of ‘double-dipping’.
This Legislative Instrument engages but does not limit the rights to health and to non-discrimination on the basis of disability. A care recipient who is excluded from participation in the CAPS, will be provided with the continence aids he or she requires to assist in maintaining the highest attainable standard of physical and mental health as part of the home care package of care and services he or she is receiving.
Conclusion
This Legislative Instrument is compatible with human rights as, to the extent that it limits the right to equality and non-discrimination, the limitation is reasonable, necessary and proportionate.
Senator the Hon Jacinta Collins
Minister for Mental Health and Ageing