EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
Aged Care Act 1997
Home Care Subsidy Amendment (Transitional Workforce Supplement and Various Measures) Determination 2014
The Aged Care Act 1997 (the Act) provides for the regulation and funding of aged care services. Persons 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.
Part 3.2 of the Act relates to home care subsidy. Home care subsidy is a payment by the Commonwealth to approved providers for providing home care to care recipients.
The amount of home care subsidy that is payable in respect of a day is the amount determined by the Minister by legislative instrument, or worked out in accordance with the method determined by the Minister by legislative instrument.
Prior to 12 December 2013, the amount of home care subsidy payable to eligible approved providers included a workforce supplement, with eligibility requirements set out in the Minister’s determination of the amount of home care subsidy. The purpose of the Home Care Subsidy Amendment (Transitional Workforce Supplement and Various Measures) Determination 2014 (the Amending Determination) is to provide for payment of a transitional workforce supplement to eligible approved providers from 12 December 2013 until 30 June 2014.
This amending determination also amends the scores that determine eligibility for the dementia and cognition supplement when the assessment is made in accordance with the Kimberley Indigenous Cognitive Assessment (KICA-Cog) tool. It also allows for back payments of home care subsidy, that includes the dementia and cognitive supplement, to be made to any approved providers who believed that a care recipient was not eligible because of the way the scores were previously specified in the determination.
The Amending Principle is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The Government publicly released The Coalition’s Policy for Healthy Life, Better Ageing in September 2013. Within this document the Government outlined its intention to remove the Workforce Supplement and to work with providers on how the funding is redistributed to the aged care sector.
Since the September 2013 Election, the Government has suspended new applications for the Workforce Supplement and later ceased the Supplement (by disallowing the relevant legislation). In doing so, providers in receipt of the Supplement were consulted regarding transitional arrangements, which are reflected in this Principle. Consultations with key stakeholders on options to redistribute the Workforce Supplement funding have occurred in parallel.
The changes in the determination in relation to the dementia and cognition supplement are to correct an error and to enable approved providers to back date their claims for payment for eligible care recipients. No additional consultation was undertaken as there had already been substantial consultation prior to the introduction of these supplements. A communication strategy will be implemented to inform aged care providers of the amendment.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 16276).
Commencement
The Amending Principle commences on the day after it is registered.
ATTACHMENT
Details of Home Care Subsidy Amendment (Transitional Workforce Supplement and Various Measures) Determination 2014.
Clause 1 states that the name of the Amending Determination is the Home Care Subsidy Amendment (Transitional Workforce Supplement and Various Measures) Determination 2014.
Clause 2 states that the Amending Determination commences on the day after it is registered.
Clause 3 provides that the authority for the making of the Amending Determination is the Aged Care Act 1997.
Clause 4 provides that for 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
Aged Care (Home Care Subsidy Amount) Determination 2013
Item 1 - Section 5 (definition of Aged Care Workforce Supplement Guidelines)
This item repeals and substitutes the definition of Aged Care Workforce Supplement Guidelines with the definition of Aged Care Transitional Workforce Supplement Guidelines, which means the document with that title published by the Department of Social Services (the Department), as existing upon the commencement of the Amending Determination.
Item 2 – Paragraph 6(1)(c)
This item repeals and substitutes a paragraph that referred to the workforce supplement with a paragraph that refers to the transitional workforce supplement (if applicable) in respect of the relevant day worked out under Division 2.4.
Item 3 – After Division 2.3
This item inserts Division 2.4 which relates to arrangements for the payment of the transitional workforce supplement from 12 December 2013 until 30 June 2014, inclusive of both those days.
The transitional workforce supplement applies to a care recipient in respect of a day and circumstances in which the supplement ceases to apply.
The transitional workforce supplement will be payable to an approved provider for a care recipient in respect of a day if:
- the day in question falls within the period 12 December 2013 to 30 June 2014 inclusive of both those days;
- the approved provider is eligible to receive home care subsidy for the care recipient in respect of the day; and
- the approved provider conducting the home care service was eligible to receive the workforce supplement on 11 December 2013.
This item also provides that the transitional workforce supplement ceases to apply to a care recipient in respect of a day if either:
- the Secretary decides that the approved provider is no longer eligible for the transitional workforce supplement; or
- the approved provider requests, in writing, the Secretary to cease payment of the transitional workforce supplement.
This item also requires the Secretary to invite the approved provider to make submissions, within 28 days, before deciding whether the approved provider is no longer eligible for the transitional workforce supplement and to take any submissions received within that timeframe into account. The Secretary is also required to have regard to the eligibility criteria specified in the Aged Care Transitional Workforce Supplement Guidelines in making a decision regarding an approved provider’s continuing eligibility for the supplement.
This item also provides that a decision made by the Secretary that an approved provider is no longer eligible for the transitional workforce supplement is a reviewable decision to which Part 6.1 of the Act applies. This gives the approved provider the right to seek internal reconsideration by the Secretary and external review of the decision by the Administrative Appeals Tribunal.
This item states that the amount of transitional workforce supplement for a particular day is 1% of the basic subsidy amount that is payable in respect of the day for the care recipient.
Item 4 – Paragraph 18(1)(e)
This item repeals paragraph 18(1)(e), which required an approved provider to lodge a claim for subsidy that included a claim for the dementia and cognition supplement no later than 56 days after any day for which the supplement was claimed in respect of a care recipient. This amendment allows for back payments of the dementia and cognition supplement to be made for a period longer than 56 days. This is in recognition that approved providers can now claim for care recipients who were unintentionally excluded, because of an error in the original determination, but who were in fact the intended beneficiaries of the supplement from the date of implementation, 1 August 2013.
Item 5 – Paragraph 18(4)(d)
This item amends the scores that determine eligibility for the dementia and cognition supplement when the assessment is made in accordance with the KICA-Cog tool.
The amendment changes the score from “34 or more” to “33 or less” as the former indicates that the care recipient is only mildly cognitively impaired whereas “33 or less” indicates that the care recipient is moderately to severely cognitively impaired. The wording “33 or less” is consistent with the language used in the tool itself.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Home Care Subsidy Amendment (Transitional Workforce Supplement and Various
Measures) Determination 2014
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
A purpose of this Amending Determination is to provide for payment of a transitional workforce supplement to eligible approved providers during the period commencing on 12 December 2013 and ending on 30 June 2014.
This Amending Determination also amends the scores that determine eligibility for the dementia and cognition supplement when the assessment is made in accordance with the Kimberley Indigenous Cognitive Assessment (KICA-Cog) tool. This amendment corrects an error in the determination.
The Amending Instrument also repeals a provision that set a 56 day time limit on back payments of the dementia and cognition supplement. This amendment allows for back payments of the dementia and cognition supplement to be made for a period longer than 56 days to approved providers who, because of the error in the determination, did not claim the supplement because they believed that a care recipient was not eligible.
Human Rights Implications
The legislative instrument is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and article 25 and article 28 of the Convention on the Rights of Persons with Disabilities.
The legislative instrument will enable the Australian Government to provide additional funding in the form of a transitional workforce supplement to approved providers of home care that were eligible for the workforce supplement on
11 December 2013. This ensures that providers who have relied on the supplement in providing wage increases to their staff will continue to receive an equivalent level of funding for the remainder of 2013-14. This protects the level and standard of care being provided to clients.
This legislative instrument will also allow for the back payment of the dementia and cognition supplement to approved providers in respect of care recipients who were intended to be eligible for the supplement but were inadvertently excluded because of an error in the determination.
Conclusion
This 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 Mitch Fifield
Assistant Minister for Social Services