EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Flexible Care Subsidy Amendment (Various Measures) Principle 2013
The Aged Care Act 1997 (the Act) provides for the regulation and 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.
Section 96-1 of the Act allows for the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. Among the Principles made under section 96-1 are the Flexible Care Subsidy Principles 1997 (the Principles).
The Principles deal with a number of matters that are important to the eligibility for and payment of flexible care subsidy to approved providers as set out in Part 3.3 of the Act.
On 20 April 2012, the Government announced the Living Longer Living Better aged care reform package. As part of the reform, community care will be replaced with home care. Home care will consist of four levels of home care packages. Level 2 packages will be the equivalent of what is now known as a Community Aged Care Package (CACP), a kind of community care. Level 4 packages will be the equivalent of what is currently a kind of flexible care known as Extended Aged Care at Home (EACH).
The purpose of the Flexible Care Subsidy Amendment (Various Measures) Principle 2013 (the Amending Principle) is to remove all references to community care, EACH and Extended Aged Care at Home – Dementia (EACH-D) given the establishment of home care. In addition, references to consumer directed care in the context of innovative care services are removed as the requirement to offer care recipients care on a consumer directed care basis will be a part of the home care program, rather than an innovative care pilot program.
The Amending Principle puts it beyond doubt that flexible care subsidy may be paid to an approved provider of a multi-purpose service based on the number of flexible care places allocated to the approved provider in respect of the multi-purpose service, rather than on the actual number of care recipients receiving care through the multi-purpose service on a particular day.
The Amending Principle also updates references to the 1994 Australian Bureau of Statistics publication with references to a more appropriate and contemporary Australian Bureau of Statistics publication. Details of these amendments are set out in the Attachment.
The Amending Principle is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
A number of the proposed amendments set out in this Amending Principle rely on amendments described in the Aged Care (Living Longer Living Better) Act 2013 which commence on 1 August 2013. This Amending Principle is being made in advance of this commencement date. This is possible in accordance with section 4 of the Acts Interpretation Act 1901, which allows for the exercise of powers between enactment and commencement of an Act including, for example, the power to make changes to delegated legislation which flow from changes made to the primary legislation (in this case, changes to the Aged Care Act 1997).
Consultation
The Living Longer Living Better aged care reform package was developed in close consultation with the aged care sector, including consumers, industry and professional bodies.
As part of the reform, changes are needed to the Act. The changes to the Principles flow from the changes to the Act.
Consultation on the proposed changes to the Act, and to delegated legislation, commenced in November 2012, with the public release of a paper providing an overview of the proposed legislative changes.
A video presentation detailing the changes was also made available through the Living Longer Living Better website, to assist with public understanding of the proposed changes.
During November and December 2012, the Department of Health and Ageing (the Department) also held briefing sessions in Melbourne, Sydney and Canberra on the proposed changes.
Stakeholders and the general community were able to provide written comments during a four-week period (21 November – 21 December 2012). The comments were made publicly available on the Living Longer Living Better website, unless the author requested otherwise. The Department received 54 submissions from members of the public, peak bodies and approved providers in response to the published overview of legislative amendments. Submissions received via the consultation on the overview of the proposed legislative changes were used to inform drafting of the amending bills and the delegated legislation.
In March and April 2013, the Department held industry briefing sessions 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. The briefing sessions also outlined changes to delegated legislation such as these Amending Principles. For those who were unable to attend the briefings a copy of the presentation, supporting handouts, a detailed Questions and Answers document and an information video were made available on the Living Longer Living Better website.
An exposure draft of the Amending Principles was made available on the Living Longer Living Better website in May 2013.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 14985).
Commencement
The Amending Principle commences on 1 August 2013.
ATTACHMENT
Details of the Flexible Care Subsidy Amendment (Various Measures) Principle 2013
Clause 1 states that the name of the Amending Principle is the Flexible Care Subsidy Amendment (Various Measures) Principle 2013.
Clause 2 states the Amending Principle commences on 1 August 2013.
Clause 3 states that the authority for the making of the Amending Principle is the Aged Care Act 1997.
Clause 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Item 1 - Section 15.3 (definition of extended aged care at home)
Section 15.3 defines the terms referred to in the Principles. This item repeals the definition of extended aged care at home (EACH) as the term will no longer be relevant from 1 August 2013 as all EACH and EACH-D places will transition to level 4 home care.
Item 2 - Section 15.3
This item inserts the definition of ‘major city’ to reflect the latest Australian Bureau of Statistic materials. The definition refers to the Australian Standard Geographical Classification (ASGC): Volume 5 – Remoteness Structure, August 2011, produced by the Australian Bureau of Statistics (ABS). The updated material provides an objective way of comparing the remoteness of a location with other locations by classifying areas as major cities, inner regional, outer regional, remote and very remote.
Item 3 - Section 15.3 (note at the end)
The note to section 15.3 lists a number of terms that are defined in the Act. Consistent with current drafting conventions, terms that are used regularly within all aged care principles, such as ‘aged care’ and ‘approved provider’, have been removed. These terms continue, for the purposes of the Principles, to have the meaning set out in the Dictionary in Schedule 1 to Act. Terms specific to the Principles, such as ‘flexible care subsidy’, are specified in the note as expressions that are defined in the Act.
Item 4 - Section 15.4
Section 15.4 currently provides that a reference to regions in the Principles is a reference to a region of that kind as defined in ‘Rural, Remote and Metropolitan Area Classification’, 1991 Census Edition, published by the Australian Government Publishing service, November 1994.
This item repeals Section 15.4 in favour of including a definition of the term ‘major’ city in section 15.3 of the Principles. This is consistent across subordinate legislation made under the Act and reflective of current ABS materials.
Item 5 - Chapter 2
Chapter 2 explains what is meant by EACH and EACH-D. This item repeals Chapter 2 in its entirety as provisions relating to EACH and EACH-D will no longer be relevant from 1 August 2013 when all EACH and EACH-D places will transition to level 4 home care.
Item 6 - Subparagraph 15.14(3)(b)(v)
Section 15.14 specifies arrangements for the approval of flexible care services provided by approved providers as multi-purpose services. This item replaces reference to ‘community care’ with ‘home care’ to reflect the establishment of home care from 1 August 2013.
Item 7 - Paragraphs 15.14(4)(a) and (b)
Subsection 15.14(4) states that an approved provider must be able to target the care to meet the needs of people in rural and remote regions in providing flexible care as a multi-purpose service. This item replaces the term ‘rural and remote regions’ with ‘an area that is not a major city’ to ensure that any areas outside of Australia’s major cities are captured for the purposes of payment of, and eligibility for, flexible care subsidies. This is consistent with current ABS materials.
Item 8 - After Division 1 of Part 2 of Chapter 3
This item inserts a new Division into the Principles which sets out the circumstances in which flexible care is taken to be provided so that flexible care subsidy may be paid to an approved provider.
Division 1A—Circumstances in which flexible care is taken to be provided
Section 15.16A - Purpose of Division (Act, s 50-1)
This section sets out the purpose of the Division. The purpose of Division 1A is to outline the circumstances in which an approved provider is taken to provide flexible care.
Section 15.16B - Circumstances
This section states that an approved provider is taken to provide flexible care during a day if the provider holds, in respect of that day, an allocated place that is in force under Part 2.2 of the Act (other than a provisional allocation) for the provision of care through a multi-purpose service. The inclusion of this section puts it beyond doubt that flexible care subsidy may be paid to an approved provider of a multi-purpose service based on the number of flexible care places allocated to the approved provider in respect of the multi-purpose service, rather than on the actual number of care recipients receiving care through the multi-purpose service on a particular day. This is consistent with current policy and with changes made to the Act to also clarify this policy in the primary legislation.
Item 9 - Section 15.22
Part 1 of Chapter 4 of the Principles specifies a class of people who do not need approval under Part 2.3 of the Act in respect of flexible care. Section 15.22 currently describes this class of people as ‘care recipients receiving flexible care (other than consumer directed care) through an innovative care service’. This item removes the reference to ‘other than consumer directed care’. This is because the innovative care program that was piloted in relation to consumer directed care ceased in 2012. Home care places allocated from 2013 must be offered on a consumer directed care basis.
Item 10 - Paragraph 15.24(1)(ea)
Paragraph 15.24(1)(ea) specifies consumer directed care as a kind of innovative care service for which flexible care subsidy may be payable. This item repeals the paragraph to remove ‘consumer directed care’ as a kind of care that is specified. This is because consumer directed care will no longer be an innovative care service for which flexible care subsidy may be payable. Home care places allocated from 2013 must be offered on a consumer directed care basis.
Item 11 - Subsection 15.24(1) (example 3 of examples for paragraph (b))
Consequential to the changes to the Act to introduce home care, this item removes the reference to ‘community care’ and replaces it with a reference to ‘home care’.
Item 12 - Subsection 15.24(1) (example for paragraph (c))
Subsection 15.24(1)(c) provides that the flexible care subsidy may be paid for care provided in a location that, by its nature, requires the delivery of alternative care options. The example relevant to this provision currently provides that subsidy may be paid for care provided in rural or remote areas. This item replaces ‘rural and remote areas’ with ‘an area that is not a major city’. This is consistent with the terminology in the new ABS publication relating to geographical classification.
Item 13 - Subsection 15.24(2) (definition of alternative care options)
The definition of alternative care options includes options for providing flexible care to older persons that meets the need of care recipients in alternative ways to the care provided through community care services. This item is a consequential amendment to replace the reference to ‘community care’ with a reference to ‘home care’ from 1 August 2013.
Item 14 - Subsection 15.24(2) (definition of consumer directed care)
This item repeals the definition of consumer directed care as this term is no longer used in these Principles. Rather, consumer directed care will be a requirement of all home care places allocated from 2013.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Flexible Care Subsidy Amendment (Various Measures) Principle 2013
The 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 the Legislative Instrument
The Flexible Care Subsidy Amendment (Various Measures) Principle 2013
(Legislative Instrument) deals with a number of matters that are important in relation to the payment of flexible care subsidy to an approved provider. The Legislative Instrument makes consequential amendments to remove all references to community care, EACH and EACH-D in line with the changes to the Act to replace these types of care with a new type of care - home care. In addition, references to consumer directed care in the context of innovative care services are removed, as the requirement to offer care recipients care on a consumer directed care basis will be a part of the home care program, rather than an innovative care pilot program.
Further, the Legislative Instrument puts it beyond doubt that flexible care subsidy may be paid to an approved provider of a multi-purpose service based on the number of flexible care places allocated to the approved provider in respect of the multi-purpose service, rather than on the actual number of care recipients receiving care through the multi-purpose service on a particular day.
The Legislative Instrument also updates references to the 1994 Australian Bureau of Statistics publication and replaces it with references to a more appropriate and contemporary Australian Bureau of Statistics publication.
Human Rights Implications
The Legislative Instrument engages with the right to the highest attainable standard of health and the right to an adequate standard of living contained in articles 11(1) and 12(1) of the International Covenant on Economic, Social and Cultural Rights, and articles 25 and 28 of the Convention on the Rights of Persons with Disabilities. The amendments in relation to multi-purpose services are designed to provide a consistent level of funding to ensure the continued availability of aged care services in small rural and remote communities served by multi-purpose services despite natural fluctuations in demand at the local level. Other changes are largely consequential and do not engage human rights.
Conclusion
The Legislative Instrument is compatible with human rights as it promotes the human right to health and the right to an adequate standard of living.
Senator the Hon Jacinta Collins
Minister for Mental Health and Ageing