Extra Service Amendment Principles 2009 (No. 1)

Administered by Department of Health, Disability and Ageing

Legislation au F2009L02092 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Ageing

 

Aged Care Act 1997

 

Extra Service Amendment Principles 2009 (No. 1)

 

The Aged Care Act 1997 (the Act) provides for the 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 Extra Service Principles 1997 (the Extra Service Principles).

 

The purpose of the Extra Service Amendment Principles 2009 (No. 1) (the Amending Principles) is detailed below.  The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Extra Service Amendment Principles 2009 (No. 1)

 

The purpose of these Amending Principles is to make consequential changes flowing from changes made to the Act through the Aged Care Amendment (2008 Measures No. 2) Act 2008 in relation to the regulation of approved providers.  That Amending Act made changes to require the Secretary to have regard to the compliance record of approved providers and former approved providers with key personnel in common with applicants for: approved provider; status certification; extra service status; allocation of places; and transfer of allocations.

 

The proposed changes to the Extra Service Principles clarify those matters that are to be taken into account by the Secretary of the Department of Health and Ageing when considering whether an approved provider (or former approved provider) with whom an applicant for extra service places has relevant key personnel in common, has a very good record of conduct, compliance or meeting its obligations under the Act.  

 

These amendments to the Principles are only required in relation to extra service applications because the relevant sections of the Act relating to extra service are constructed differently to those sections of the Act relating to certification, approved provider status and allocation and transfer of places.  Those other sections already have sufficient flexibility to enable the Secretary to consider a wide range of matters when looking at the history of approved providers that share key personnel with applicants.  The extra service provisions in the Act are not as flexible and as such changes are being made to the Principles to introduce the necessary level of flexibility that already exists in relation to the other provisions. 

 


Consultation

 

The policies reflected in the Aged Care Amendment (2008 Measures No. 2) Act 2008 were the subject of consultation with the aged care sector through the Ageing Consultative Committee, which comprises peak industry, professional and consumer bodies.  These changes to the Principles are minor and consequential, flowing directly from the changes made to the Act.

 

Regulation Impact Statement

 

The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required.

 

Details of the amendments to the Extra Service Principles are listed at Attachment A.

ATTACHMENT A

NOTES ON CLAUSES

 

Clause 1 states that the name of the Amending Principles is the Extra Service Amendment Principles 2009 (No. 1).

 

Clause 2 states that the Amending Principles commence on 1 June 2009.

 

Clause 3 states that Schedule 1 amends the Extra Service Principles 1997.

 

Schedule 1 Amendments

 

Item 1

Section 32-4 of the Aged Care Act 1997 (the Act) provides that the Secretary must not grant an application for extra service status unless certain criteria are met.  One of the criteria (at 32-4(1)(ca)) is that if the applicant has relevant key personnel in common with a person who is or has been an approved provider, that other person must have a very good record of conduct as a provider of aged care and compliance with its responsibilities and obligations.  Subsection 32-4(2) further provides that the Extra Service Principles may specify the matters to which the Secretary must have regard in determining whether there has been a very good record of conduct and compliance. 

 

This item amends the Extra Service Principles to insert a new section (section 14.19AA)  which specifies the matters to which the Secretary must have regard in considering whether a person who is or has been an approved provider with whom the applicant has relevant key personnel in common has a very good record of conduct, compliance or meeting its obligations under the Act. 

 

The Amending Principles provide that when looking at the conduct of the other provider or former approved provider with whom the applicant shares key personnel, the Secretary must take into account: 

  • whether the other approved provider or former approved provider with whom the applicant shares key personnel, has been complying with its obligations and responsibilities under the Act.  If not, the Secretary can also look at: the nature of the standard or obligation with which the entity was non-compliant; the nature and extent of the breach; and the role that the key personnel in common played in the non-compliance and the rectification of any non-compliance. 

 

The Secretary may also have regard to any other matters, for example, how closely the entities are related. 

 

These changes are being made to ensure there is sufficient flexibility for the Secretary to consider all relevant matters.  It is important to note that a poor record of performance by another entity does not necessarily adversely impact the application of the approved provider seeking extra service status. 

 

For example, if a Director of Aged Care Company A is Ms Jones (one of the key personnel) and she is also one of the key personnel for Aged Care Company B, the Secretary must consider the compliance record of Aged Care Company B, when considering the application for extra service status by Aged Care Company A.  If Aged Care Company B has experienced incidents of non-compliance (while the key personnel in common was working for Aged Care Company B), this will not necessarily adversely affect Aged Care Company A’s application.  In considering the record of the other entity, these amendments to the Principles require the Secretary to consider, where there have been compliance issues, the seriousness of the compliance issue, the nature of the provider’s response to the issue, and the roles and responsibilities of the key personnel under consideration.  This helps the Secretary to make an informed judgement about the key personnel of the applicant and the applicants’ suitability for receiving extra service places.

 

 

 

Overview

The Extra Service Amendment Principles 2009 (No. 1) were enacted to address the need for flexibility in assessing the suitability of approved providers applying for extra service status under the Aged Care Act 1997. These principles were introduced in response to changes made by the Aged Care Amendment (2008 Measures No. 2) Act 2008, which required the Secretary to consider the compliance records of approved providers sharing key personnel with applicants. The purpose of the Amending Principles is to provide the necessary flexibility in the extra service provisions, aligning them with other sections of the Act that already have sufficient leeway in this regard. Enacted by the Minister for Ageing, these principles ensure that the Secretary of the Department of Health and Ageing can take into account various factors, such as the nature and extent of non-compliance and the roles played by shared key personnel, when determining whether an approved provider has a very good record of conduct, compliance, or meeting obligations under the Act. This approach enables a more nuanced assessment, ensuring that a poor record of another entity does not necessarily hinder the application of the provider seeking extra service status. The policy objective of these amendments is to maintain the integrity and quality of aged care services by ensuring that the assessment of extra service applications is thorough and informed. By introducing these principles, the government aims to balance the need for stringent compliance with the practicalities of managing care providers. The principles were developed following consultations with the aged care sector through the Ageing Consultative Committee, reflecting a collaborative approach to policy-making in this area.

Scope and Application

The Extra Service Amendment Principles 2009 (No. 1) amend the Extra Service Principles 1997 under the Aged Care Act 1997, affecting approved providers who apply for extra service status. These principles apply to approved providers, including former approved providers, who share key personnel with applicants for extra service places. The Amending Principles clarify the criteria for determining a "very good record of conduct" for these providers, taking into account their compliance history and other relevant factors. This amendment ensures that the Secretary of the Department of Health and Ageing has sufficient flexibility to consider all pertinent matters when evaluating an application, thereby allowing for a fair assessment of the applicant’s suitability despite the compliance history of entities with shared key personnel. These principles are applicable nationally across Australia, reflecting the Commonwealth’s role in regulating aged care services. The Amending Principles do not introduce new exclusions or exemptions but rather refine the considerations already outlined in the Act. They are a direct consequence of changes made by the Aged Care Amendment (2008 Measures No. 2) Act 2008, which required the Secretary to consider the compliance records of providers with shared key personnel. While the changes are specific to applications for extra service status, they do not extend to other sections of the Act, such as those related to certification or allocation of places, which already possess the necessary flexibility. The Amending Principles commenced on 1 June 2009, ensuring that the regulatory framework remains current and effective in managing aged care services.

Key Provisions

The main operative sections of the Extra Service Amendment Principles 2009 (No. 1) focus on the amendment of the Extra Service Principles 1997, as outlined in Schedule 1 of the instrument. The key amendment, detailed in Item 1, introduces a new section (14.19AA) that specifies the matters the Secretary of the Department of Health and Ageing must consider when determining if an approved provider with whom an applicant for extra service status shares key personnel has a very good record of conduct, compliance, and meeting obligations under the Aged Care Act 1997 (the Act). This includes compliance with obligations and responsibilities, the nature and extent of any non-compliance, and the roles of key personnel in such non-compliance or its rectification. The Secretary is also permitted to consider other relevant matters, such as the relationship between the entities involved. The obligations and requirements imposed by the Amending Principles primarily concern the Secretary's assessment process when considering applications for extra service status. According to Section 32-4(1)(ca) of the Act, the Secretary must not grant an application for extra service status unless specific criteria are met, including that any relevant key personnel in common with a person who is or has been an approved provider must have a very good record of conduct. The Amending Principles provide further detail by specifying the matters the Secretary must consider in this assessment, ensuring a thorough evaluation of the applicant’s suitability based on the compliance record of any shared key personnel. This process aims to maintain high standards of care and compliance within the aged care sector. Breach of the provisions set out in the Extra Service Amendment Principles 2009 (No. 1) does not explicitly outline specific offences, penalties, or civil/criminal consequences within the explanatory statement. However, the Aged Care Act 1997 and related regulations likely govern any consequences for non-compliance with the Act's provisions, including potential administrative actions or sanctions against approved providers who do not meet the stipulated standards. The explanatory statement focuses more on clarifying the assessment process and ensuring compliance rather than detailing penalties for non-compliance.

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