EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
User Rights Amendment Principles 2011 (No. 2)
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 residential aged care services (approved providers) can be eligible to receive residential care subsidy payments in respect of the care they provide to approved care recipients.
Subsection 96-1(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 subsection 96-1(1) are the User Rights Principles 1997 (the User Rights Principles).
The purpose of the User Rights Amendment Principles 2011 (No. 2) ‘the Amending Principles’ is to specify for the purposes of paragraph 57A-6(1)(c) of the Act the maximum daily accrual amount of accommodation charge for specified types of post-2008 reform residents. The accommodation charge has been increased in accordance with previously announced Australian Government policy.
The maximum amount of accommodation charge is capped based on when a care recipient enters residential aged care. Until 2010, the maximum accommodation charge was different for residents receiving an income support payment and self-funded retirees. The maximum amount of accommodation charge for pensioners and self-funded retirees entering care from 20 March 2010 onward, became the same in most cases.
The exceptions to this general rule are people who first entered care before 1 July 2004 (whose maximum accommodation charge is lower) and people who are receiving care through a service that does not meets certain building requirements (whose maximum accommodation charge is also lower). While the maximum amount of accommodation charge payable by existing residents remains the same while they are in care, the maximum accommodation charge for new residents is adjusted twice per year (on 20 March and 20 September) in accordance with Australian Government policy.
The purpose of the amendments to subsections 23.81P(5) to (8) is to increase the maximum amount of accommodation charge for residents entering care on or after 20 September 2011, in accordance with previously announced Australian Government policy.
Further details on the Amending Principles are attached.
Consultation
The Department of Health and Ageing undertook extensive consultation on the policy, which included policy on the amounts of accommodation charge, that was implemented through the Aged Care Amendment (2008 Measures No. 1) Act 2008 and related instruments. As the amounts of accommodation charge are in line with previously announced Government policy, no further consultation has been undertaken with respect to this instrument.
Information about the increase in the amounts of accommodation charge will be disseminated via electronic media to approved providers.
The Amending Principles commence on 20 September 2011.
The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Details of the User Rights Amendment Principles 2011 (No. 2)
1 Name of Principles
Section 1 states that the name of the Amending Principles is the User Rights Amendment Principles 2011 (No. 2).
2 Commencement
Section 2 states that the Principles commence on 20 September 2011.
3 Amendment of User Rights Principles
Section 3 states that Schedule 1 amends the User Rights Principles 1997.
Schedule 1 – Amendments
Items 1, 2, 3 and 4 – Sections 28.81P(5) to (8)
These items replace existing subsections 23.81P(5), (6), (7) and (8) to include both existing provisions and add new clauses to specify for paragraph 57A-6(1) (c) of the Act the maximum daily accrual amount of accommodation charge for certain types of post-2008 reform residents entering care on or after 20 September 2011 and before 20 March 2012. The amounts included are in accordance with previously announced Australian Government policy.
Overview
The User Rights Amendment Principles 2011 (No. 2) were enacted to amend the Aged Care Act 1997 and address the need for updated maximum daily accrual amounts of accommodation charges for specified types of post-2008 reform residents. This legislative instrument was introduced by the Minister for Mental Health and Ageing and was enacted by the Australian Government, with the aim of aligning the accommodation charges with previously announced policy adjustments. The policy objective behind these amendments was to ensure that the accommodation charges for new residents are adjusted regularly, in line with government policy, while maintaining stability for existing residents. The amendments to the User Rights Principles were made to reflect changes in the accommodation charge amounts, which are adjusted twice per year in accordance with Australian Government policy. The Department of Health and Ageing consulted extensively on the policy prior to the implementation of these amendments.
Scope and Application
The User Rights Amendment Principles 2011 (No. 2) applies to the provisions of the Aged Care Act 1997 concerning the maximum daily accrual amount of accommodation charge for specified types of post-2008 reform residents. These Principles are designed to align the accommodation charge for residents entering care on or after 20 September 2011, in accordance with previously announced Australian Government policy. The amendment primarily affects residential aged care services and the approved providers who deliver such services, as well as the approved care recipients who are subject to the accommodation charge. These Principles are applicable nationwide, given that the Aged Care Act 1997 operates under the Commonwealth jurisdiction. The Amending Principles do not apply to residents who entered care before 1 July 2004, as they have a different, lower maximum accommodation charge, nor do they apply to residents in services that do not meet certain building requirements, who also have a lower charge. Additionally, existing residents in care are not affected by these changes; only new residents entering care after the specified date are subject to the updated accommodation charge. The Amending Principles are made under the authority of the Minister for Mental Health and Ageing and are subject to the Legislative Instruments Act 2003.
Key Provisions
The main operative sections of the User Rights Amendment Principles 2011 (No. 2) (the Amending Principles) are sections 28.81P(5) to (8) in Schedule 1, which detail the maximum daily accrual amount of the accommodation charge for certain post-2008 reform residents. These sections specify the rates applicable to residents entering care on or after 20 September 2011 and before 20 March 2012, in line with previously announced Australian Government policy. They amend the User Rights Principles 1997 to provide clarity on the maximum accommodation charges for these specified residents, ensuring that the updated rates are effectively implemented.
The obligations and requirements imposed by the Amending Principles primarily concern approved providers of residential aged care services. These providers must ensure that the accommodation charges for applicable residents are set in accordance with the new rates specified in the Amending Principles. The principles stipulate different maximum charges based on when the resident entered care and whether they are receiving an income support payment or are self-funded. Approved providers need to review and update their billing practices to reflect these changes, ensuring that they comply with the updated accommodation charge rates.
There are no specific offences or penalties outlined in the Amending Principles themselves; however, failure to comply with the specified accommodation charge rates could potentially result in civil or administrative consequences under the Aged Care Act 1997. Non-compliance might be considered a breach of the terms and conditions under which the residential care subsidy payments are made, leading to potential recovery of overpayments or other financial penalties. The Aged Care Act provides a framework for handling such breaches, but specific penalties would depend on the context and severity of the non-compliance, as well as any relevant administrative or judicial decisions.
The maximum penalties for breaches of the Aged Care Act 1997 can vary significantly depending on the nature and seriousness of the offence. Civil penalties can include fines up to a certain amount per breach, while criminal offences can result in fines and/or imprisonment. For example, serious breaches that involve intentional deception or significant harm to residents could lead to higher penalties, including substantial fines and imprisonment terms of up to five years. The exact penalties would be determined by the courts based on the specifics of each case.