Residential Care Subsidy Amendment (New Supplements and Other Measures) Principle 2013

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Mental Health and Ageing

Aged Care Act 1997

Residential Care Subsidy Amendment (New Supplements and Other 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 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 Residential Care Subsidy Principles 1997 (the Principles).

Part 3.1 of the Act relates to residential care subsidy. Residential care subsidy is a payment by the Commonwealth to approved providers for providing residential care to care recipients. In addition to the basic subsidy amount, various supplements may be payable if eligibility requirements are met. Section 44-5 of the Act provides for the payment of primary supplements and section 44-16 states that the Principles may provide for additional primary supplements. Section 44-27 of the Act, as amended by the Aged Care (Living Longer Living Better) Act 2013, provides for the payment of other supplements, including any other supplements set out in the Principles.

On 20 April 2012, the Government announced the Living Longer Living Better (LLLB) aged care reform package.  As part of the reform, new supplements will be payable to providers of residential care.

The purpose of Residential Care Subsidy Amendment (New Supplements and Other Measures) Principle 2013 (the Amending Principle) is to create a new additional primary supplement, the dementia and severe behaviours supplement, and a new other supplement, the veterans’ supplement. Details are set out in the Attachment.

The Amending Principle is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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.

The new supplements, including eligibility criteria have been subject to extensive consultation.  Specifically, the Dementia and the Veterans’ Supplement Working Group was formed to provide advice to the Department on eligibility criteria for new supplements for the care of people with dementia and other behavioural conditions and veterans with specified mental health conditions.

Consultation drafts of the Dementia and Veterans’ Supplement Guidelines were released on 1 May 2013. Feedback from these consultation processes has contributed to these Principles.

An exposure draft of the Amending Principle 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 Residential Care Subsidy Amendment (New Supplements and Other Measures) Principle 2013

Clause 1 states that the name of the Amending Principle is the Residential Care Subsidy Amendment (New Supplements and Other Measures) Principle 2013.

Clause 2 states that the Amending Principle commences on 1 August 2013.

Clause 3 provides that the authority for the making of the Amending Principle is the Aged Care Act 1997 (the Act).

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 21.3C (Heading)

Item 1 omits “that may” in section 21.3C (Heading) and substitutes “to”. This is to ensure that the matters outlined in this section are considered by the Secretary when deciding to make a determination under subsection 42-5(1).

Item 2 - At the end of Part 10 

This item inserts a new Division 6 (Dementia and severe behaviours supplement) at the end of Part 10.

Division 6 – Dementia and severe behaviours supplement

Section 21.26K - Purpose of Division

This Division sets out the circumstances in which the dementia and severe behaviours supplement in residential care will apply.  The dementia and severe behaviours supplement provides aged care providers with additional funding in recognition of care needs of residents with severe behavioural and psychological symptoms associated with dementia or mental illness.

Section 21.26KA - Circumstances in which the dementia and severe behaviours supplement applies

This section provides that, from 1 August 2013, the dementia and severe behaviours supplement will be payable in respect of a care recipient if:

• the care recipient was provided with residential care (other than respite care); and
• the care recipient was an eligible care recipient; and
• the approved provider conducting the residential care service had, in relation to the care recipient, evidence of the care recipient’s eligibility in the form of:

–                        an appropriate written medical diagnosis (as discussed below); and

–                        the results of an assessment (as discussed below).

A care recipient is an eligible care recipient on a day (the relevant day) if:

• the care recipient has, on or before the relevant day, been medically diagnosed in writing, by a registered medical practitioner, with one or more of the health conditions that is assigned an ACAP code between 0500 and 0599. ACAP code means a code assigned to a health condition in Appendix H of the Aged Care Assessment Program Data Dictionary Version 1.0, published by the Australian Institute of Health and Welfare, as that document exists on 1 August 2013;
• the care recipient has been assessed in accordance with the NPI‑NH test before the relevant day and in accordance with the conditions detailed below; and
• a claim for residential care subsidy that includes the dementia and severe behaviours supplement for the relevant day for the care recipient is made no more than 56 days after the relevant day.

The assessment requirements are satisfied in relation to the care recipient and the relevant day if:

• the care recipient has been assessed in accordance with the NPI‑NH test before the relevant day. The NPI‑NH is the Neuropsychiatric Inventory—Nursing Home Version, as the test exists on 1 August 2013; and

• if the dementia and severe behaviours supplement was not payable for the care recipient for the day before the relevant day—the assessment was conducted within 3 months before the relevant day; and

• if the dementia and severe behaviours supplement was payable for the care recipient for the day before the relevant day, and the relevant day is within 12 months starting on the care recipient’s eligibility start day—the assessment was conducted within 3 months before the care recipient’s eligibility start day; and

• if the dementia and severe behaviours supplement was payable for the care recipient for the day before the relevant day, and the relevant day is within 12 months starting on an anniversary of the care recipient’s eligibility start day—the assessment was conducted within 3 months before that anniversary; and

Note: The three provisions relating to the time when the NPI-NH test is conducted allow for the supplement to be paid for a period of 12 months without further testing, with the care recipient’s eligibility, or continuing eligibility, being tested before the beginning of each 12 month period if the approved provider wishes to claim the supplement for another year.

• the assessment was conducted by a registered nurse, clinical nurse consultant, nurse practitioner or medical practitioner; and

• to allow the care recipient time to settle into his or her new environment, the assessment was not conducted during the period of 7 days (not including any day on which the care recipient was on pre‑entry leave) starting on the day on which an approved provider began providing residential care to the care recipient; and

• the results of the assessment are:

–        the domain total score (frequency multiplied by severity) in any two of the specified domains— delusions, hallucinations, agitation/aggression, depression/dysphoria, anxiety, disinhibition—must be 12; and

–        a score of at least 50 for the sum of the domain total scores for all 12 domains (A to L) mentioned in the NPI‑NH test; and

–        a score of 4 or higher for occupational disruptiveness for at least 2 of the specified domains; and

• the results of the assessment have been given to the Secretary, but to ensure that care givers had time to assess the care recipient’s behavioural symptoms the results were not given to the Secretary during the period of 28 days (not including any day on which the care recipient was on pre‑entry leave) starting on the day on which an approved provider began providing residential care to the care recipient.

eligibility start day, for a care recipient, means:

• the first day for which residential care subsidy that includes the dementia and severe behaviours supplement becomes payable for the care recipient; or
• if residential care subsidy that includes the dementia and severe behaviours supplement was payable for the care recipient but has ceased to be payable for the care recipient—the first day for which residential care subsidy that includes the dementia and severe behaviours supplement becomes payable again for the care recipient.

Item 3 – Subsection 21.30(2)

This item corrects a typographical error.

Item 4 – Subsection 21.30(2)(note)

This item corrects a typographical error.

Item 5 – After Part 13

This item inserts a new Part 13A.

Part 13A – Other supplements

Division 1 – General

Section 21.32F – Purpose of Part (Act, s 44-27)

This section describes the purpose of the Part. The Part provides for other supplements to be payable in respect of eligible care recipients.

Division 2 – Veterans’ supplement

Section 21.32G – Veterans’ supplement

This section provides that the veterans’ supplement for a care recipient in respect of a payment period that starts on or after 1 August 2013 is the sum of all the veterans’ supplements for the days during the period on which:

• the care recipient was provided with residential care (other than respite care) by an approved provider through the residential care service in question; and
• the care recipient was a veteran who had an accepted mental health condition.

Subsection 21.32G(2) further provides that the veterans’ supplement will not apply to a care recipient unless the care recipient has before, during or after the payment period, authorised the Secretaries of the Department administering the Veterans’ Entitlements Act 1986 and the Department administering the Human Services (Centrelink) Act 1997 to disclose to the approved provider that the care recipient is a veteran with an accepted mental health condition. This is to ensure that personal information about a care recipient who is a veteran is not disclosed to an approved provider against the care recipient’s wishes. If a veteran authorises the disclosure of his or her personal information after a payment period, the veterans’ supplement can be paid in arrears in respect of the payment period.

For the purposes of this section, “accepted mental health condition” means a mental health condition for which:

• the Repatriation Commission has accepted liability to pay a pension under the Veterans’ Entitlements Act 1986; or
• the Military Rehabilitation and Compensation Commission has accepted liability to pay compensation under the Military Rehabilitation and Compensation Act 2004 or the Safety, Rehabilitation and Compensation Act 1988.

For the purpose of determining eligibility for the veterans’ supplement, “veteran” means a person

• who is taken, under section 7 of the Veterans’ Entitlements Act 1986, to have rendered eligible war service; or
• in respect of whom a pension is payable under subsection 13(6) of that Act; or
• who is a member of the Forces within the meaning of subsection 68(1) of that Act or a member of a Peacekeeping Force within the meaning of that subsection; or
• who is a member within the meaning of the Military Rehabilitation and Compensation Act 2004 or a former member within the meaning of that Act; or
• who is an employee within the meaning of the Safety, Rehabilitation and Compensation Act 1988.

A note below the definition of “veteran” clarifies that although the present tense, “is”, is used in describing “a member of the Forces”, “a member of a Peacekeeping Force” and “an employee”, the Acts to which these signpost definitions refer provide that, in some cases, these definition cover a person who is no longer serving and an employee who has ceased to be an employee.

Item 6 - Subsection 21.35B(2)

Item 6 repeals subsection 21.35B(2) and substitutes a new subsection to update a reference to the Measuring Remoteness: Accessibility/Remoteness Index of Australia (ARIA), Occasional Papers: New Series Number 14, published by the Department in October 2001, as the document exists on 1 July 2013. In the new subsection the term “ARIA value” is used instead of the term “ARIA score” as this is a more accurate reflection of the terminology used in the publication Measuring Remoteness: Accessibility/Remoteness Index of Australia (ARIA). This is a change in terminology only and does not change the scoring system set out in this section.  

Item 7 - Subsection 21.35C(2)

Item 7 repeals the definitions of ARIA and ARIA Score subsection 21.35C(2), as they are redundant.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Residential Care Subsidy Amendment (New Supplements and Other 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 Residential Care Principles 1997 made under section 96-1 of the Aged Care Act 1997 deal with eligibility for residential care subsidy, how it is paid and what amount is paid. The subsidy is a payment by the Commonwealth to approved providers for providing residential care to care recipients. In addition to the basic subsidy amount, various supplements may be payable if eligibility requirements are met.

On 20 April 2012, the Government announced the Living Longer Living Better (LLLB) aged care reform package. As part of the reform, new supplements will be payable to providers of residential care. The purpose of Residential Care Subsidy Amendment (New Supplements and Other Measures) Principle 2013 (the Legislative Instrument) is to create a new additional primary supplement, the dementia and severe behaviours supplement, and a new other supplement, the veterans’ supplement.

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 promotes these rights by making provision for the payment of additional funding to approved providers who provide residential aged care to people with severe behavioural and psychological symptoms associated with dementia or mental illness. The Legislative Instrument also promotes these rights by making available a veterans’ supplement to facilitate access to residential aged care for veterans with service related mental health conditions to ensure that their condition does not act as a barrier to accessing appropriate care.

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