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Aged Care and Other Legislation Amendment Act 2022 - what you need to know

By Lucille Scomazzon, Angela Wood, Tamie Duncan-Bible

• 29 September 2022 • 1 min read
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This article is part one in a series where we summarise the key amendments and the relevant commencement dates.

In Brief

The Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Royal Commission Response Act) has passed through Parliament and received Royal Assent on 5 August 2022.

The Royal Commission Response Act has made changes to the Aged Care Act 1997 (Aged Care Act), the Aged Care Quality and Safety Commission Act 2018 (ACQSC Act) and the Aged Care (Transitional Provisions) Act 1997 (Transitional Provisions Act).

The changes under the Royal Commission Response Act are structured into nine Schedules. Some of the changes commenced in August 2022 while others do not commence until 1 October and 1 December 2022. In some cases, there is a 12-month lead and implementation time frame for existing approved providers.

Royal Commission Response Act

The Royal Commission Response Act is structured as follows:

  • Schedule 1: Residential and Aged Care Funding

    Commencement Date: 1 October 2022

    While the amendments under Schedule 1 predominately relate to the introduction of the Australian National Aged Care Classification (AN-ACC), this Schedule also:

    • Removes certain conditions on the minimum/maximum number of respite days a provider offers through an allocated place in a certain period, enabling providers to provide as many or as few days as they wish for residential respite.
    • Amends the rules for charging accommodation bonds and accommodation charges where a resident moves from one provider (prior provider) to another (new provider). The changes permit the new provider to charge an accommodation bond or accommodation charge within 28 days of entry (limited to the maximum amount of accommodation bond balance or charge balance that was refunded to or is payable to the resident by the prior provider).
  • Schedule 2: Star ratings for residential aged care

    Commencement Date: 6 August 2022

    Schedule 2 introduces a mechanism for the Department of Health and Aged Care to publish information by the end of 2022 on MyAgedCare, in the form of a star rating, about:

    • the quality of residential care provided through a residential aged care service
    • the performance of a provider in relation to the approved provider’s responsibilities and Aged Care Quality Standards.

    The star ratings will be published as an overall rating, against the following four sub‑categories:

    • the five existing quality indicators – pressure injuries, physical restraint, unplanned weight loss, falls and major injury, and medication management
    • service compliance ratings relevant to the regulatory activities undertaken by the Aged Care Quality and Safety Commission (ACQSC)
    • consumer experience information to be collected from face-to-face interviews with approximately 20 percent of older Australians across all residential aged care services
    • staff minutes of care.

    Protected Information may be used by the Department for the purposes of creating information for publication or calculating a star rating and the Department may use information that was ‘acquired or created, before, on or after’ the commencement of these amendments, being 6 August 2022.

    Further detail

    The Amending Act does not indicate that further detail underpinning the star rating system will be included in Principles under the Aged Care Act or the Rules under the ACQSC Act. It remains to be seen whether information will be published regarding the detailed methodology that will be applied when calculating a star rating or whether there will be limitations on the currency of information the Department may consider when creating information for publishing or calculating a star rating.

  • Schedule 3: Code of Conduct and Banning Orders

    Commencement Date: 1 December 2022

    Schedule 3 introduces a Code of Conduct that will apply to approved providers and individuals who are or were aged care workers and individuals who are or were governing persons (certain key personnel).

    The definition of ‘aged care worker’ has been expanded to specifically include:

    • individuals employed or otherwise engaged by a provider (including volunteers)
    • individuals employed or otherwise engaged by a contractor or subcontractor and independent contractors of an approved provider who provide care or other services to care recipients.

    The ACQSC will have increased powers of investigation and new powers to impose banning orders on current and former aged care workers and governing persons of approved providers. Effectively, this will prohibit or restrict such persons from being involved in the provision of any type, or specified types, of aged care, or from engaging in specified activities as an aged care worker or as a governing person.

    Further detail

    Schedule 3 also provides that Rules may be made in respect of the content of the Code of Conduct, provisions which relate to compliance action the ACQSC may take in respect of the Code of Conduct and the Register of banning orders.

  • Schedule 4: Extension of incident management and the Serious Incident Response Scheme to aged care services delivered in the community

    Commencement Date: Changes to the Aged Care Act commence on 1 December 2022 and changes to the ACQSC Act commenced on 6 August 2022.

    The definition of a reportable incident will be expanded to include incidents that occur, are alleged to have occurred or are suspected of having occurred in connection with the provision of aged care to a care recipient, with reporting obligations for providers of home care services commencing on 1 December 2022. This was previously limited to care provided in a residential aged care setting.

    Changes to the ACQSC Act which commenced on 6 August 2022 relate to the actions the ACQSC may take in response to reportable incidents, including initiating inquiries into reportable incidents and requiring providers to undertake actions as directed by the ACQSC.

    Further detail

    The requirements for the incident management system that providers will be required to implement are to be detailed in the amendments to the Quality of Care Principles 2014 (Quality of Care Principles).

    Equivalent Serious Incident Response Scheme requirements are introduced for service providers of the Commonwealth Home Support Programme (CHSP) and the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP) delivered in a home or community setting from 1 July 2022. This will be achieved by including the requirements in the CHSP Program Manual and NATSIFACP Program Manual, which service providers are required to comply with under the relevant grant agreements. ‘Reportable incident’ will be defined under the relevant program manuals in the same way as is done for approved providers under the Aged Care Act.

  • Schedule 5: Governance of Approved Providers

    Commencement Date: 1 December 2022 with some changes including a further 12 month transition period for existing approved providers.

    Schedule 5 introduces new responsibilities for certain approved providers in relation to their ‘governing body’ in respect of:

    • governing body membership (majority being independent non-executive directors with at least one member to have experience in the provision of clinical care)
    • establishment of new advisory bodies
    • leadership and culture
    • reporting on operations of the approved provider
    • notification requirements and timeframes in respect of suitability of Key Personnel.

    The amendments include a new definition of ‘governing body’ which means:

    • if the approved provider is a body corporate incorporated or taken to be incorporated under the Corporations Act 2001 (Cth) - the Board of Directors of the provider
    • otherwise - the group of persons responsible for the executive decisions of the provider.

    These changes commence for organisations which become approved providers from 1 December 2022. For existing approved providers, the changes commence on 1 December 2023.

    Some of the new obligations do not apply in the following circumstances:

    • where the approved provider is a State or Territory, State or Territory authority or local government authority
    • where the approved provider’s governing body has fewer than 5 members and the approved provider provides care and services to fewer than 40 care recipients across all its aged care services
    • where the approved provider is the kind of a body that is known as an Aboriginal Community Controlled Organisation
    • where a determination under s63-1E of the Aged Care Act is in place that certain responsibilities relating to the governing body of the approved provider do not apply.

    Notification periods for a change of circumstances that materially affects the suitability of an approved provider or certain events that relate to key personnel will be shortened. Previously approved providers were required to notify the ACQSC within 28 days, however from 1 December 2022, approved providers will be required to notify the ACQSC within 14 days after the event occurred.

    Additionally, approved providers will be required to consider at least once every 12 months the suitability of its key personnel to be involved in the provision of aged care.

    Further detail

    The Accountability Principles 2014 may be amended to prescribe further detail about:

    • certain requirements for membership of, and reporting by, quality care advisory bodies
    • the suitability matters that approved providers must consider in relation to individuals who are key personnel at least every 12 months, record keeping and associated responsibilities.

  • Schedule 6: Information sharing and enforcement collaboration

    Commencement Date: 6 August 2022

    Schedule 6 introduces changes that increase the scope for information sharing between Commonwealth Departments in respect of responding to non-compliance and regulatory risks and facilitates information sharing with worker screening units in relation to non-compliance with the Code of Conduct by approved providers and their workers and governing persons.

  • Schedule 7: Use of refundable accommodation payments (RADs and Bonds)

    Commencement Date: 6 August 2022

    The ACQSC or the Department has increased powers to request information or documents regarding the use of and the status of loans made using refundable accommodation deposits or bonds. The kind of documents and information that may be requested includes the loan agreement, the amount of the loan including the interest rate and evidence that the interest has been set on a commercial basis, repayment schedule and security for the loan, and may be as broad as ‘any other information or documents that relate to the loan’.

    These changes apply to the use of refundable accommodation deposits or bonds that occurred before, on or after 6 August 2022.

    Additionally, the period of liability for existing offences which relate to the misuse of refundable accommodation deposits or bonds prior to an insolvency event for both approved providers and key personnel has been increased from 2 years to 5 years.

  • Schedule 8: Independent Health and Aged Care Pricing Authority

    Commencement Date: 12 August 2022

    Schedule 8 sets out the functions and scope of authority of the renamed Independent Health and Aged Care Pricing Authority.

  • Schedule 9: Restrictive Practices

    Commencement Date: 6 August 2022

    Schedule 9 revises the strengthened arrangements on the use of restrictive practices that commenced on 1 July 2021, to address unexpected outcomes in relation to the interaction with State and Territory guardianship and consent laws.

    The amendments also introduce interim consent arrangements until State and Territory laws can be amended to address these issues.

    Additionally Schedule 9 provides scope for amendments to be made to the Quality of Care Principles to make further provisions in respect of who may provide informed consent in relation to the use of a restrictive practice where a care recipient lacks capacity, including the authorisation of a person to consent to the use of a restrictive practice on a care recipient’s behalf, where State and Territory laws currently do not clearly provide for a person to consent to the use of restrictive practices.

    Further detail

    The recently released Quality of Care Amendment (Restrictive Practices) Principles 2022 Exposure Draft (Exposure Draft) includes a proposed hierarchy of persons or bodies who can be restrictive practice substitute decision makers and make informed consent decisions about the use of a restrictive practice if no one is authorised under the relevant State or Territory law.

    The Exposure Draft also provides further clarification on the likely application of the ‘immunity arrangements’ introduced by the Royal Commission Response Act. The immunity arrangements do not give general immunity in all circumstances. The new section 54-11 of the Aged Care Act provides that the immunity provisions will only be available where all of the requirements of the Quality of Care Principles have been complied with. Based on the content of the Exposure Draft this will require informed consent to the use of a restrictive practice being given by a person or body described in 5B.

Do you require assistance navigating these changes?

Contact our Healthcare Team if you want support empowering your Board or staff with knowledge, training and resources.

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