EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Home Care Subsidy Principles 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 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 Home Care Subsidy Principles 2013 (the Principles).
On 20 April 2012, the Government announced the Living Longer Living Better aged care reform package. Included in the package of reforms was the creation of a new type of aged care – home care. From 1 August 2013, home care will replace community care and some forms of flexible care. There will be four levels of home care packages to provide for a seamless continuum of care at home. Existing care packages currently delivered in the form of Community Aged Care Packages (CACP) (community care under the Act), Extended Aged Care at Home (EACH) and Extended Aged Care at Home - Dementia (EACH-D) (flexible care under the Act) will transition to home care packages.
The purpose of the Principles is to provide details regarding the payment of home care subsidy. This includes arrangements for the temporary suspension of home care at the request of the care recipient. Details such as when the home care agreement remains in force and the period within which home care services are suspended are set out in the Principles. That a care recipient is taken to be provided with home care during a suspension period enables the payment of subsidy to the approved provider to continue during a period when the care recipient is on leave from their home care package. The Principles also sets out how advance payments of home care subsidy to an approved provider by the Commonwealth are calculated. Details of these amendments are set out in the Attachment.
The Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The existence of these new Principles relies on amendments described in the Aged Care (Living Longer Living Better) Act 2013 which commence on 1 August 2013. These Principles are 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 Principles.
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. These new 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 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.
The Home Care Packages Working Group was formed to provide advice to the Department on the new home care packages program. Draft Guidelines for home care packages were released in April 2013 for comment. Feedback from this consultation process has contributed to these Principles.
An exposure draft of the Principles was made available on the Living Longer Living Better website in May 2013.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) has advised that no Regulation Impact Statement is required (OBPR ID 14985).
Commencement
The Principles commence on 1 August 2013.
ATTACHMENT
Details of the Home Care Subsidy Principles 2013
Section 15A.1 - Name of principles
This section states that the name of the Principles is the Home Care Subsidy Principles 2013.
Section 15A.2 - Commencement
This section states that the Principles commence on 1 August 2013.
Section 15A.3 - Authority
This section provides that the authority for making the Principles is the Aged Care Act 1997 (the Act).
Section 15A.4 - Definition
This section states that in these Principles “Act” means the Aged Care Act 1997. A note states that a number of terms used in the Principles are defined in the Act.
Section 15A.5 - Suspension of home care
This section explains how home care services can be suspended under section 46-2 of the Act at the request of the care recipient and the effect of that suspension, including that the home care agreement between the approved provider and the care recipient remains in force during a period of suspension.
Subsection 15A.5(3) establishes that a care recipient is taken to be provided with home care during a suspension period. This enables the payment of subsidy to the approved provider to continue during a period when the care recipient is on leave from their home care package. The Minister’s determination under section 48-1 of the Act of the amount of home care subsidy sets out details as to how home care subsidy is paid during a period of suspension.
Section 15A.6 - Amounts of advances of home care subsidy
This section explains that, for the purposes of subsection 47-3(4) of the Act, amounts of advances of home care subsidy paid to an approved provider by the Commonwealth must be worked out by taking into account only care recipients who are being provided with home care in accordance with a home care agreement. This ensures that an advance of home care subsidy to be paid to an approved provider in respect of a subsequent payment period does not include potential care recipients who are not yet party to a home care agreement with that provider.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Home Care Subsidy Principles 2013
The Home Care Subsidy Principles 2013 (the Principles) are 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 Principles provide details regarding the payment of home care subsidy. This includes arrangements for the temporary suspension of home care at the request of the care recipient. Details such as when the home care agreement remains in force and the period within which home care services are suspended are set out in the Principles. That a care recipient is taken to be provided with home care during a suspension period enables the payment of subsidy to the approved provider to continue during a period when the care recipient is on leave from their home care package. The Principles also sets out how advance payments of home care subsidy to an approved provider by the Commonwealth are calculated.
Human Rights Implications
The Principles are 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 Principles promote these rights by making provision for the reservation of a care recipient’s home care package while the care recipient takes leave, for example to receive hospital care or transition care or for social reasons. The Principles ensure that a care recipient can take leave from receiving home care secure in the knowledge that they will be able to resume receiving home care when they return from leave.
Conclusion
The Principles are compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.
Senator the Hon Jacinta Collins
Minister for Mental Health and Ageing