EXPLANATORY STATEMENT
Aged Care Act 1997
User Rights Amendment (Home Care Pricing) Principles 2018
Authority
Section 96-1 of the Aged Care Act 1997 (the Act) provides that the Minister may, by legislative instrument, make Principles providing for matters required or permitted, or necessary or convenient to give effect to specified parts of the Act. Item 23 of section 96-1 allows the Minister to make User Rights Principles in relation to Part 4.2 of the Act.
Purpose
The purpose of the User Rights Amendment (Home Care Pricing) Principles 2018 is to require approved providers of home care to provide the Secretary of the Department of Health written notice of their pricing information for the purpose of publication. This is to improve the transparency of home care pricing information for home care recipients.
Background
There is a lack of transparency and comparability in home care pricing information.
Home care recipients and their families have raised concerns and complaints on this issue, including through the Legislated Review of Aged Care 2017 and directly to the Minister for Aged Care, the Hon Ken Wyatt AM, MP (the Minister).
This lack of transparency and comparability affects care recipients’ ability to make an informed decision about which approved provider/s of home care are best placed to deliver their care. This decision could occur before entering home care, or when a care recipient is deciding to change their approved provider of home care.
This lack of transparency and comparability directly contradicts the policy intent of the Increasing Choice in Home Care reforms, implemented on 27 February 2017 through the Aged Care Legislation Amendment (Increasing Consumer Choice) Act 2016. These reforms aimed to facilitate and support greater consumer choice about home care services. This included the portability of home care packages to enable a care recipient to retain their package if they choose to change provider.
Whilst all approved providers of home care currently have the ability to voluntarily publish a schedule of pricing information through the My Aged Care Home Care Package Service Finder, there has been low take-up.
Consultation
This change to improve the transparency of home care pricing information has been developed and informed through collaboration and consultation with aged care sector representatives. This included aged care provider peak bodies, and home care provider and consumer representatives.
The Minister convened a policy roundtable discussion with these sector representatives in March 2018. The Minister asked the representatives to consider a sector wide approach for options to improve the transparency and comparability of home care pricing. This was consistent with recommendation 11 of the Legislated Review of Aged Care 2017:
“that government and providers work together to determine how to ensure comparability of home care pricing for consumers and how to best publish on My Aged Care”.
This recommendation was underpinned by sector consultation including with senior Australians, carers, aged care providers, aged care assessors and peak bodies through written submissions and face-to-face workshops.
The approach to improving the transparency of home care pricing information has strong sector support.
Regulation Impact Statement
The reforms contained in this instrument have been agreed with the Office of Best Practice Regulation as having no more than a minor regulatory impact on businesses and individuals. Noting this, a Regulatory Impact Statement is not required (OBPR ID: 23990).
Commencement
This Instrument will commence on the day after it is registered on the Federal Register of Legislation.
The Instrument is a legislative instrument for the purpose of the Legislation Act 2003.
Details of the User Rights Amendment (Home Care Pricing) Principles 2018
- Name
Section 1 states the name of this instrument is the User Rights Amendment (Home Care Pricing) Principles 2018.
2. Commencement
Section 2 provides that this instrument is to commence the day after it is registered.
3. Authority
Section 3 provides that this instrument is made under the authority of the Aged Care Act 1997.
Under subsection 33(3) of the Acts Interpretation Act 1901 (Acts Interpretation Act), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Accordingly, the power in section 96-1 of the Act to make Principles is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to vary the User Rights Principles 2014 as set out in Schedule 1.
4. Schedules
Section 4 provides that each instrument 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: after the heading to section 4
Item 1 relocates the Note in section 4 from its current location to the position that accords with the Office of Parliamentary Council’s current drafting practices.
Item 2: section 4 (note)
Item 2 is a consequential amendment, to repeal the Note in section 4 from its current position.
Item 3: after paragraph 16(1)(c)
Item 3 updates the purpose of Part 3 of the User Rights Principles 2014 to include reference to the requirement that an approved provider of a home care service must give information to the Secretary about the cost of providing care and services.
Item 4: after Division 2 of Part 3
Item 4 introduces a new requirement for approved providers of home care services to provide pricing information to the Secretary for publication.
Subsection 19A(1) provides that an approved provider of home care services must give the Secretary written notice about the costs of providing the care and services for the purpose of publication. This includes on costs for current and potential future care recipients.
This information is intended for publication on the My Aged Care Home Care Package Service Finder. My Aged Care is the national entry point for all Commonwealth-subsidised aged care services and was introduced to make it easier for senior Australians to navigate the aged care system. Publishing home care pricing information through My Aged Care will ensure its transparent disclosure for home care recipients.
Subsection 19A(2) provides that the notice must be given in a form approved, in writing, by the Secretary. The intention is that this form will only relate to the manner of submitting the form, as this is currently undertaken electronically through the use of internet portals.
Subsection 19A(3) requires existing providers (those who are approved providers before section 19A commences) to give the notice before the end of 30 November 2018. Those who become approved providers in the interim period between the commencement of section 19A and 30 November 2018 are required to comply either by 30 November 2018 or before they offer to enter into a home care agreement with a care recipient (whichever comes last). New providers (those who become approved providers after 30 November 2018) will be required to give the notice before they offer to enter into a home care agreement with a care recipient.
The policy intent of this change is to provide greater transparency for care recipients about the indicative price of care and services charged by that approved provider of home care. This information could be sought when selecting an approved provider of home care for the first time, when a care recipient seeks to change providers, and/or when a care recipient is negotiating the terms of their individualised budget once they have chosen a provider.
Approved providers of home care retain the flexibility to publish the contents of their pricing information in the manner they deem appropriate; allowing them to continue to operate in innovative ways. However, the best practice approach would be for the pricing information to include the core services offered by the provider, and an associated indicative price for each. It would also be best practice to outline circumstances where the care recipient could expect the price to vary from this published price, such as where services can be bundled or where additional charges may be included.
Item 5: Division 3 of Part 3 (heading)
Item 5 is a consequential amendment, to make clear that Division 3 relates to the responsibilities of approved providers of home care to provide information to care recipients.
This is required, given the addition of Division 2A about the responsibilities of approved providers of home care to provide pricing information to the Secretary.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
User Rights Amendment (Home Care Pricing) Principles 2018
This 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 User Rights Amendment (Home Care Pricing) Principles 2018 amends the User Rights Principles 2014 to require approved providers of home care to provide the Secretary of the Department of Health written notice of their pricing information for the purpose of publication. This is to improve the transparency of home care pricing information for home care recipients.
Human rights implications
The instrument engages the following human rights:
- the right to an adequate standard of living;
- the right to choice for persons with disabilities; and
- the right to freedom of opinion and expression.
This instrument promotes the right to an adequate standard of living, as set out in Article 11 of the International Covenant on Economic, Social and Cultural Rights; and also rights of persons with disabilities with regard to their choice and independence, as per Article 3(a) of the Convention on the Rights of Persons with Disabilities.
This is because this instrument provides for the transparent publication of information by approved providers of home care services about the cost of providing care and services to care recipients. This will provide care recipients, including older people with disabilities, with information they require to inform their choice and ensure they can receive the care that best meets their individual needs. The transparent publication of this information may also encourage further competition within the home care sector, leading to increased innovation in the delivery of care more suited to the needs of the care recipient.
This instrument also promotes the right to freedom of opinion and expression, as set out in Article 19 of the International Covenant on Civil and Political Rights. This instrument facilitates the right to receive and impart written information relating to home care pricing information. This instrument allows approved providers of home care to retain the ability to present their pricing information in the manner they deem appropriate.
Conclusion
The 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. The instrument promotes the protection of human rights to an adequate standard of living, the right to choice for persons with disabilities and the right to freedom of opinion and expression.
The Hon Ken Wyatt AM, MP
Minister for Aged Care