EXPLANATORY STATEMENT

Veterans’ Affairs (Treatment Principles – Removal of Prior Approval Requirement and Time Limits for Convalescent and Respite Care in Hospital) Amendment Instrument 2015

EMPOWERING PROVISIONS

For Schedule 1 of the attached instrument — subsection 90(5) of the Veterans’ Entitlements Act 1986 (the VEA).

For Schedule 2 of the attached instrument — subsection 286(3) of the Military Rehabilitation and Compensation Act 2004 (the MRCA).

For Schedule 3 of the attached instrument — subsection 16(7) of the Australian Participants in British Nuclear Tests (Treatment) Act 2006 (the APBNT(T)A).

PURPOSE

The attached instrument (2015 No. R32/MRCC32) varies the legislative instruments known as the Treatment Principles, the MRCA Treatment Principles and the Treatment Principles (Australian Participants in British Nuclear Tests) 2006 (hereinafter these 3 legislative instruments are referred to collectively as the Treatment Principles). 

The Treatment Principles set out the circumstances in which treatment may be provided to clients of the Department of Veterans’ Affairs (DVA).  The variations to the Treatment Principles made by the attached instrument relate to:

• removing the requirement for the Department of Veterans’ Affairs (DVA) to approve the provision of convalescent care or respite care in a hospital before the care is provided i.e. prior approval is no longer required (removal of prior approval measure);

• removing the time limit on the length of stay in a hospital for a person convalescing (formerly 21 days per financial year) or receiving respite care (formerly 28 days per financial year) (removal of time limits measure).

• minor and technical changes to “respite care terminology” so as to align it with the relevant terminology used by the Australian Institute of Health and Welfare (AIHW) (minor and technical measure).

removal of prior approval measure

This measure only applies to convalescent care or respite care provided to a DVA client at a hospital.  If these two types of care are provided to a DVA client in an institution other than a hospital then prior DVA approval is required.

The reason for removing the prior approval requirement for the provision of the care in question in hospitals is because it is impractical for public hospitals, at least, to seek prior approval, as coding and billing for a treatment episode invariably occurs after the client has been discharged.

removal of time limits measure

Prior to the attached instrument DVA would only pay for a maximum of 21 days per financial year for convalescent care for a client in an institution e.g. a hospital and a maximum of 28 days per financial year for respite care for a client in an institution not covered by the Aged Care Act 1997 e.g. a hospital. 

It should be noted that these limits did not (and do not) apply to residential care, including residential care (respite), provided to a client in a residential care facility covered by the Aged Care Act 1997.

The problem with imposing a time limit on convalescent care or respite care provided to a DVA client at a hospital is that it had no nexus with the client’s clinical needs, and it was inconsistent with the AIHW definition for these care types in hospital.

Accordingly the Repatriation Commission and Military Rehabilitation and Compensation Commission decided to remove the time limits in question but to reserve a discretion to pay for the care in question so as to enable funding of the care to be stopped if it considered the length of hospitalisation to be excessive.

Again this measure only applies to convalescent care or respite care provided to a DVA client at a hospital.  If these two types of care are provided to a DVA client in an institution other than a hospital then, unless the care constitutes residential care or residential care (respite) in a institution covered by the Aged Care Act 1997, the respective time limits apply.

minor and technical measure

Prior to the attached instrument the Treatment Principles described convalescent care as “convalescent admission” and, in some provisions, respite care as “respite admission”.

The term convalescent admission is a misnomer in the hospital context because the person in question would already have been admitted to hospital for acute care.  In other words an “admission” for convalescent care is not involved.  Accordingly “convalescent admission” has been replaced with the more accurate term “convalescent care”.

In a number of places in the Treatment Principles the term “respite admission” occurs.  This term is at odds with the terminology used by the AIHW to describe the provision of respite.  The AIHW uses the obvious term “respite care”.  However the term “respite care” is currently used under the Treatment Principles to describe situations that would include the provision of respite care in a non-institutional setting and in the current exercise it is the provision of respite care in an institution that is in issue.  Accordingly the AIHW term could not be used.  The compromise was to use the phrase “respite care in an institution” to replace the phrase “respite admission” and the Treatment Principles have been varied accordingly.

Further details of the attached instrument are set out in Attachment A.

CONSULTATION

No, because the measures in the attached instrument are beneficial in nature and interested parties could be expected to agree to them.

RETROSPECTIVITY

None.

DOCUMENTS INCORPORATED-BY-REFERENCE

No.

HUMAN RIGHTS STATEMENT

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

The attached legislative instrument does engage an applicable right or freedom.  It relates to the Right to Health contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights. 

The Right to Health is the right to the enjoyment of the highest attainable standard of physical and mental health.  The UN Committee on Economic Social and Cultural Rights has stated that health is a fundamental human right indispensable for the exercise of other human rights.  Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

The attached legislative instrument engages with the Right to Health by facilitating the situation whereby the optimum level of convalescent care or respite care could be provided to a DVA client in hospital.  It does this by ensuring that funding for the care in question does not cut out automatically after certain periods but continues according to the client’s clinical need for the care. 

Conclusion

The attached legislative instrument is considered to be compatible with the human right to health because it could help ensure a person receives care for the period the person needs that care as distinct from receiving care for a period arbitrarily set in legislation.

Michael Ronaldson

Minister for Veterans’ Affairs

Rule-Maker

Deregulation

The attached instrument is deregulatory in that it removes the legislative need for hospital operators to seek DVA’s prior approval before providing a DVA client with convalescent care or respite care in a hospital.  Although in practice the requirement tended not to be observed because it was impractical, nevertheless the requirement was still on the “statute books” and needed to be removed.

Attachment A

FURTHER EXPLANATION OF INSTRUMENT

Section 1

This section sets out the name of the instrument – the Veterans’ Affairs (Treatment Principles – Removal of Prior Approval Requirement and Time Limits for Convalescent and Respite Care in Hospital) Amendment Instrument 2015.

Section 2

This section provides that the instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.

Section 3

This section advises that the legislative authority for the instrument is the Veterans’ Entitlements Act 1986, the Military Rehabilitation and Compensation Act 2004 and the Australian Participants in British Nuclear Tests (Treatment) Act 2006.

Section 4

This section provides that the variations to the Treatment Principles in a schedule to the instrument take effect according to the terms of the schedule.

Schedule 1 – Part A (Variations to the Treatment Principles under the Veterans’ Entitlements Act 1986)

Sections 1-2

These sections are definition sections.

Sections 3-4

These sections make minor and technical variations.

Section 5

This section restates the former provision but provides an exception to the requirement that DVA’s prior approval be obtained before the provision of convalescent care to a DVA client in an institution or before the provision of respite care to a DVA client in an institution and the exception is where the institution is a private or public hospital.  Accordingly DVA’s prior approval is not required for the provision of convalescent care or respite care to a DVA client in hospital.

A DVA client in Schedule 1 Part A is a veteran or veteran’s dependant.

Section 6

This section restates the former provision but the new additions (ka) and (kb) make it clear that DVA’s prior approval is not required for the provision of convalescent care or respite care to a DVA client in hospital.

Section 7

This section restates the former provision but now provides that where convalescent care is provided to a DVA client in an institution that is a private or public hospital then the limit of 21 days p.a. for the care no longer applies.

Sections 8-13

These sections make minor and technical variations.

Section 14

This section restates the former provision but now provides that where respite care is provided to a DVA client in an institution that is a private or public hospital then the limit of 28 days p.a. for the care no longer applies.

Schedule 2 – Part A (Variations to the MRCA Treatment Principles under the Military Rehabilitation and Compensation Act 2004)

Sections 1-2

These sections are definition sections.

Sections 3

This section makes a minor and technical variation.

Section 4

This section restates the former provision but provides an exception to the requirement that DVA’s prior approval be obtained before the provision of convalescent care to a DVA client in an institution or before the provision of respite care to a DVA client in an institution and the exception is where the institution is a private or public hospital.  Accordingly DVA’s prior approval is not required for the provision of convalescent care or respite care to a DVA client in hospital.

A DVA client in Schedule 2 Part A is a member (including a former member) of the Defence Force or a dependant of the member or former member.

Section 5

This section restates the former provision but the new additions (ka) and (kb) make it clear that DVA’s prior approval is not required for the provision of convalescent care or respite care to a DVA client in hospital.

Section 6

This section restates the former provision but now provides that where convalescent care is provided to a DVA client in an institution that is a private or public hospital then the limit of 21 days p.a. for the care no longer applies.

Sections 7-13

These sections make minor and technical variations.

Section 14

This section restates the former provision but now provides that where respite care is provided to a DVA client in an institution that is a private or public hospital then the limit of 28 days p.a. for the care no longer applies.

Schedule 3 – Part A (Variations to the Treatment Principles (Australian Participants in British Nuclear Tests) 2006)

Under section 16 of the Australian Participants in British Nuclear Tests (Treatment) Act 2006 (APBNT(T)A) the Treatment Principles under the VEA (VEA Treatment Principles) apply to DVA clients under the APBNT(T)A unless modified. 

A DVA client under the APBNT(T)A is an Australian participant in British nuclear tests who is eligible for treatment of malignant neoplasia.

The VEA Treatment Principles have been modified in their application under the APBNT(T)A by, among other things, replacing the definitions part of the VEA Treatment Principles with a modified definitions part. 

Sections 1-2 of the attached instrument change the modified definitions part of the Treatment Principles (Australian Participants in British Nuclear Tests) 2006 by replacing certain definitions in it with new definitions.

The VEA Treatment Principles have also been modified in their application under the APBNT(T)A by the replacement of the table in paragraph 10.6.2 of the VEA Treatment Principles with a modified table. 

Section 3 of the attached instrument changes the modified table in the Treatment Principles (Australian Participants in British Nuclear Tests) 2006 by making a minor and technical variation to it.