EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
National Health Act 1953
Continence Aids Payment Scheme Variation 2014 (No. 1)
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 to 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 2014 (No. 1) (the Variation)
The Variation repeals a provision describing a class of people who are not eligible to participate in the CAPS and substitutes a provision describing an equivalent class of people using different terminology. 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 repeals subparagraph 4(2)(c)(i), which specified that a care recipient under the Aged Care Act 1997 who is being provided with a high level of residential care is not eligible to participate in the CAPS, and substitutes a new subparagraph which specifies that a care recipient is not eligible to participate in the CAPS if the care recipient’s classification level includes any of the following:
- high ADL domain category;
- high CHC domain category;
- high behaviour category; or
- a medium domain category in at least 2 domains.
This change results from amendments made to the Aged Care Act 1997 by the Aged Care (Living Longer Living Better) Act 2013 that come into effect on 1 July 2014 and changes to principles made under section 96-1 of the Aged Care Act 1997 flowing from those amendments.
Prior to 1 July 2014, a care recipient who is being provided with a high level of residential care is eligible under the Quality of Care Principles 1997 to receive continence aids at no additional cost. From 1 July 2014, a care recipient whose classification level includes any of the above domain categories will be eligible under the Quality of Care Principles 2014 to receive continence aids at no additional cost. From 1 July 2014, a care recipient’s classification level will be determined in accordance with the Classification Principles 2014.
As care recipients to whom this provision applies do not need to purchase continence aids, they are not eligible to receive CAPS payments.
Item 2 of Schedule 1 inserts a note after subparagraph 4(2)(c)(ii) indicating certain expressions used in the subparagraph 4(2)(c)(i) are defined in the Classification Principles 2014. . The Classification Principles are made under section 96-1 of the Aged Care Act 1997.
Consultation
The change to the CAPS is consequential to the removal of the distinction between low and high level residential care as part of the changes to the Aged Care Act 1997 that commence on 1 July 2014.
In April 2012, the former Government launched a major program of aged care reforms. The reform agenda was developed in close consultation with the aged care sector, including consumers, industry and professional bodies.
As part of the consultation on the proposed changes to the Act, and to delegated legislation, arising from the reforms, the former Government communicated its intention to examine the delegated legislation and, where possible, simplify the delegated legislation.
This intent was communicated in November 2012, with the public release of a paper providing an overview of the proposed legislative changes. A video presentation detailing the proposed reforms was also made available online to assist members of the public to understand these changes.
During late 2012 and in the first half of 2013, briefing sessions were held 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. As part of these consultations, the intention to make related changes to delegated legislation was again discussed. For those interested members of the public unable to attend the briefings, the presentation, supporting handouts, a detailed Question and Answer document and an information video were made available online.
Also in April 2012, the former Government commenced a review of the Schedule of Specified Care and Services for Residential Care Services (Schedule 1, Quality of Care Principles 1997), with a National Aged Care Alliance-auspiced Specified Care and Services Reference Group established to provide advice.
The Reference Group met on ten occasions and in March 2014 provided final consensus recommendations on changes to consolidate and modernise the Schedule in response to the removal of low care and high care distinction in permanent residential care. In formally providing its recommendations, the Reference Group also encouraged the Government to review all other programs reliant on the low care and high care distinction, including CAPS, to preserve ongoing eligibility.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for this Variation (ID 17153).
Legislative instrument
The Variation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The instrument commences on 1 July 2014.
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 2014 (No. 1)
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 repeals a provision describing a class of people who are not eligible to participate in the Continence Aids Payment Scheme (CAPS) and substitutes a provision describing an equivalent class of people using different terminology. This change results from amendments made to the Aged Care Act 1997 by the Aged Care (Living Longer Living Better) Act 2013 that come into effect on 1 July 2014 and changes to principles made under section 96-1 of the Aged Care Act 1997 flowing from those amendments.
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 recipients of residential care whose classification level under the Aged Care Act 1997 includes specified domain categories from participation in the CAPS.
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 the provision of residential care 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 because of their classification level 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 care and services their approved provider is required to supply at no additional cost to the care recipient.
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 Mitch Fifield, Assistant Minister for Social Services