EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Sanctions 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 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 Sanctions Principles 1997 (the Principles).
Part 4.4 of the Act is about the consequences of non‑compliance with approved provider responsibilities under Part 4.1, 4.2 or 4.3 of the Act. The consequences of non-compliance may include the imposition of sanctions. The kinds of sanctions that can be imposed on an approved provider are set out in Division 66 of the Act.
The Principles set out a number of matters that are important to the operation of the sanctions process, including matters regarding the administrator and adviser panel arrangements. These panels operate to assist an approved provider that is under sanction to comply with its responsibilities under the Act.
In response to aged care industry concerns about the availability of panel members, a number of changes have been made to the panel arrangements. The majority of the changes to the panel arrangements have been captured in the Aged Care (Living Longer Living Better) Act 2013. The Sanctions Amendment (Various Measures) Principle 2013 (the Amending Principle) makes minor amendments to the Principles which support changes made to the Act through the Aged Care (Living Longer Living Better) Act 2013.
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.
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.
The Department also wrote to peak aged care bodies and panel members in late 2012 highlighting proposed changes to the administrator and adviser panel arrangements.
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 noted that changes would be made 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 this Amending Principle was also published on the Department’s 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 Sanctions Amendment (Various Measures) Principle 2013
Clause 1 states that the name of the Amending Principle is the Sanctions Amendment (Various 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 22.3 (note at end)
This item repeals the boxed note which states that a number of expressions used in the Principles 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 the Act. Terms used less commonly, such as ‘disqualified individual’, are specified in the note as expressions that are defined in the Act.
Item 2 - Subsection 22.7(3)
Part 2, Division 1 of the Principles sets out requirements concerning the appointment of a person as an adviser to an approved provider. Subsection 22.7(3) currently provides for the Secretary to approve the appointment of a proposed adviser only if satisfied in relation to the requirements set out in the subsection. This subsection has been amended to include the requirement that the Secretary may only approve the appointment of the proposed adviser if satisfied that there would be no conflict, affecting the delivery of care or other services, between the proposed adviser’s obligations as adviser and any other obligations of the proposed adviser. This requirement was previously set out in the Act, but it is more appropriately placed in the Principles consistent with other provisions in Part 2, Division 2 that detail the matters the Secretary must be satisfied of in relation to the appointment of a person as an administrator to an approved provider.
Item 3 - Subsection 22.7(6)
This item repeals and replaces this subsection to specify that a decision under subsection 22.7(1) of the Principles to refuse to approve the proposed appointment of a person as an adviser to an approved provider is a reviewable decision under section 85-1 of the Act. This amendment ensures that the review processes and timeframes set out in Division 85 of the Act apply to any internal reconsideration of a decision to refuse to approve the proposed appointment of an adviser. In accordance with section 85-8 of the Act, where, on internal reconsideration, a reviewable decision has been confirmed, varied or set aside under section 85-4 or 85-5, application may be made to the Administrative Appeals Tribunal for external review of the decision.
Item 4 - Subsection 22.9(2)
Section 22.9 describes the process to be undertaken by an approved provider in nominating another adviser in circumstances where the Secretary refuses to approve an appointment of a proposed adviser under section 22.7. This item amends the timeframe within which the approved provider must nominate another adviser from 7 days to 5 days. In circumstances where the nomination of an adviser under section 22.7 was refused, it is desirable for there to be a shortened time for re-nomination because time will have elapsed since the imposition of sanctions. This amendment ensures the approved provider under sanction appoints an adviser in a timely manner to assist the approved provider to comply with its responsibilities under the Act.
Item 5 - Subsection 22.13(6)
This item repeals and replaces this subsection to specify that a decision under subsection 22.13(1) of the Principles to refuse to approve the proposed appointment of a person as an administrator to an approved provider is a reviewable decision under section 85-1 of the Act. This amendment ensures that the review processes and timeframes set out in Division 85 of the Act apply to any internal reconsideration of a decision to refuse to approve the proposed appointment of an administrator. In accordance with section 85-8 of the Act, where, on internal reconsideration, a reviewable decision has been confirmed, varied or set aside under section 85-4 or
85-5, application may be made to the Administrative Appeals Tribunal for external review of the decision.
Item 6 - Subsection 22.15(2)
Section 22.15 describes the process of nominating another administrator in circumstances where the Secretary refuses to approve an appointment of the proposed administrator. This item amends the timeframe within which the approved provider must nominate another administrator from 7 days to 5 days. In circumstances where the nomination of an administrator under section 22.7 was refused, it is desirable for there to be a shortened time for re-nomination because time will have elapsed since the imposition of sanctions. This amendment ensures the approved provider under sanction appoints an administrator in a timely manner to assist the approved provider to comply with its responsibilities under the Act.
Item 7 - Subparagraph 22.20(1)(b)(iii)
Part 3, Division 2 of the Principles specifies matters to which the Secretary must have regard, and the requirements to be met, in deciding whether it is appropriate for a sanction to be lifted. Subparagraph 22.20(1)(b)(iii) provides that the application must set out details of any assessment against the Community Care Standards of the community care services (if any) provided by the approved provider carried out while the sanction has been in effect. Under the Living Longer Living Better reforms, home care will replace community care. Consequently, the Community Care Standards will be replaced by the Home Care Standards. This item replaces the references to the Community Care Standards and community care services with references to the Home Care Standards and home care services.
Item 8 - Subsection 22.20(2) (definition of Community Care Standards)
This item substitutes the definition of the Community Care Standards with a definition of the Home Care Standards as mentioned in Part 5 of the Quality of Care Principles 1997. This amendment is consequential to the introduction of home care from 1 August 2013.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Sanctions 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
This Sanctions Amendment (Various Measures) Principles 2013 (Legislative Instrument) makes amendments to the Sanctions Principles 1997 (the Principles) to support the Living Longer Living Better aged care reform package. The amendments include updating the panel arrangements for advisers and administrators to provide consistency in the panel appointment process whether the appointment relates to an adviser or an administrator and to reflect the introduction of home care under the Living Longer Living Better reforms.
The instrument also reduces from 7 days to 5 days the period within which an approved provider under sanctions whose initial nomination of an adviser or administrator has not been approved by the Secretary must nominate another adviser or administrator to assist the provider to meet its responsibilities under the Aged Care Act 1997 (the Act).
If sanctions are imposed on an approved provider for failure to meet its responsibilities in relation to quality of care, user rights and accountability, the provider may be required to appoint an adviser or administrator (or both) from a panel maintained by the Department of Health and Ageing. An approved provider on whom such a sanction is imposed must nominate an adviser or administrator within 5 working days of the sanction being imposed. The Secretary may approve or refuse to approve the person nominated by the provider. If the nomination is not approved, the provider must nominate another person from the panel. By reducing the timeframe for the approved provider to nominate an alternative adviser or administrator from 7 days to 5 days, the instrument speeds up the appointment process.
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 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 Legislative Instrument reduces the period within which an approved provider must nominate an adviser or administrator to assist the approved provider to comply with its responsibilities under the Act. This helps to ensure the safety, health and well-being of care recipients in circumstances where an approved provider requires the assistance of an adviser or administrator to achieve and maintain an appropriate standard of care and services.
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 by reducing the period within which an approved provider of aged care must appoint an adviser or administrator to assist the provider to achieve compliance with its responsibilities towards recipients of aged care.
Senator the Hon Jacinta Collins
Minister for Mental Health and Ageing