EXPLANATORY STATEMENT
MRCA Treatment Principles (Community Care at Home approved under the Aged Care Act 1997 for Former Prisoners of War and Victoria Cross for Australia Recipients) Determination 2011
EMPOWERING PROVISION
Subsection 286(3) of the Military Rehabilitation and Compensation Act 2004 (Act).
PURPOSE
The attached instrument amended the MRCA Treatment Principles (the Principles) to enable the Military Rehabilitation and Compensation Commission (the Commission) to accept financial responsibility for co-payments payable by certain entitled persons under the Act for community care and certain kinds of flexible care received under the Aged Care Act 1997.
The relevant entitled persons are members of the Defence Force who are former prisoners of war (POWs) or who have been awarded the Victoria Cross for Australia (VC recipients).
Community care and flexible care are subsidised by the Australian Government under provisions in the Aged Care Act 1997. Flexible care includes the Extended Aged Care in the Home Package (EACH) and an EACH Dementia package (the flexible care packages relevant here).
Although the Commonwealth funds the bulk of the costs of community care/flexible care, a recipient of such care may be required to pay a co-payment.
The attached instrument enables DVA to pay that co-payment.
The Principles are a legislative instrument made by the Commission under subsection 286(2) of the Act, approved by the Minister for Veterans’ Affairs under subsection 286(3) of the Act, and which set out the circumstances in which the Commission may accept financial liability for treatment provided to members of the Defence Force or their dependants.
The attached instrument rectifies an anomaly by making a benefit that is available to former prisoners of war and recipients of the Victoria Cross under the Veterans’ Entitlements Act 1986 (VEA) also available to POWs and VC recipients under the Act i.e. payment by the Department of Veterans’ Affairs (DVA) of the co-payment for community care and flexible care (extended aged care at home or extended aged care at home – dementia).
The instrument grants the Commission the discretion to accept financial responsibility for co-payments that POWs or VC recipients are required to pay for community care/flexible care (extended aged care at home or extended aged care at home – dementia).
RETROSPECTIVITY
Yes. The Instrument is taken to have commenced on 21 August 2009 so that parity with the situation under the VEA may be achieved. Under the VEA similar benefits were available on and from 21 August 2009.
For the purposes of section 12 of the Legislative Instruments Act 2003 (retrospective legislative instruments of no effect if impose a detriment) the Instrument does not disadvantage any person or impose any liabilities on any person (other than the Commonwealth).
CONSULTATION
Not directly however consultation on the similar proposal under the VEA (similar VEA proposal) took place with the Department of Health and Ageing (which provides community care and flexible care) and it agreed with it.
Also, the President of the RSL and the President of the Ex-POW Association were consulted about the similar VEA proposal and both were supportive of it.
In these circumstances the rule-maker considered that consultation in respect of the attached legislative instrument was unnecessary.
DOCUMENTS INCORPORATED - BY - REFERENCE
No.
FURTHER EXPLANATION
Attachment A
Attachment A
Items
Paragraph [1] sets out the name of the Instrument.
Paragraph [2] provides that the Instrument commences on
21 August 2009.
Schedule
Item 1 defines a Community Aged Care Package as meaning community care under the Aged Care Act 1997.
Community care is provided under section 45-3 of the Aged Care Act 1997, being community care in respect of which an approved provider (approved under the Aged Care Act 1997) is eligible for community care subsidy under the Aged Care Act 1997 on the day the care is provided to a POW or VC recipients.
defines an Extended Aged Care at Home Package as flexible care provided under section 49-3 of the Aged Care Act 1997, being:
- flexible care in respect of which an approved provider (approved under the Aged Care Act 1997) is eligible for flexible care subsidy under the Aged Care Act 1997 on the day the care is provided to a POW or VC recipient; and
- comprised only of the flexible care described in the Flexible Care Subsidy Principles 1997 as “extended aged care at home” or “extended aged care at home – dementia”.
Notes to these definitions state that the relevant Aged Care Legislation may be found on the Internet at COMLAW and make it clear that legislative instruments under the Aged Care Act 1997 are relevant to what is/is not community care/flexible care.
defines a POW but does not confine the POW’s service to service where a member would normally be taken prisoner e.g. warlike service, in acknowledgement that members rendering peacetime service could be captured by an enemy such as a terrorist.
Item 2 substitutes a new Heading to Part 10 of the Principles that reflects that Part 10 now also covers care at home packages in addition to residential care.
Item 3 inserts a new Part D (comprised of paragraphs 10.9 to 10.12.1) after Part C of Part 10 of the Principles.
Paragraph 10.9 provides that where a former prisoner of war or an entitled member awarded the Victoria Cross (VC recipient) is receiving, or has received, a Community Aged Care Package or Extended Aged Care at Home Package, the Commission may accept financial responsibility for the package.
Paragraph 10.10 sets out the amount that the Commission may accept financial responsibility for, which is the co-payment a former prisoner of war or VC recipient is required to pay under an agreement between themselves and the care-provider.
However the Commission cannot accept responsibility for an amount of co-payment that exceeds the limit for the co-payment set out in the Aged Care Act 1997; or in any instruments thereunder; or in an agreement between the provider of the care and the Secretary of the Department that administers the Aged Care Act 1997.
Paragraph 10.10 also makes it clear that the Commission may only accept financial responsibility for a co-payment and not an amount for which subsidy is payable under the Aged Care Act 1997.
Paragraph 10.11 sets out matters the Commission should take into account when deciding whether to accept financial responsibility for co-payments payable under a Community Aged Care Package or an Extended Aged Care at Home Package. Matters the Commission should consider are:
- whether the care was provided in accordance with the Aged Care Act 1997 and any relevant instruments thereunder;
- whether the care complies with the requirements of any agreement between the provider of the care and the Secretary of the Department that administers the Aged Care Act 1997; and
- whether any care received under a Community Aged Care Package or an Extended Aged Care at Home Package is essentially the same as care a former prisoner of war or VC recipient is receiving under the Principles e.g. under the MRCA Home Care Program. This would prevent double dipping.
Paragraph 10.12.1 provides that the provider of a Community Aged Care Package or an Extended Aged Care at Home Package should bill Medicare Australia rather than the former prisoner of war or VC recipient. However if the former prisoner of war or VC recipient is billed then the Commission may still accept financial responsibility for the amount.
Item 4 renumbers the paragraphs under Part 10 to ensure they run sequentially.