Reflecting on 12 months of reform in aged care:
1 December 2022 to 1 December 2023
Following our recent article on the Australian Government’s proposal for a new aged care regulatory regime and a new Aged Care Act, in this article we take stock on the changes to the current regime and legislation.
We recap the key changes that have been gradually commencing since December 2022 and explore those known changes that will be commencing through to 1 December 2023.
Many of the changes have required, or will require (when they commence), approved providers of aged care to make fundamental changes to their systems and processes. They also raise issues for consideration by investors in the sector and those looking to exit or consolidate their position. In essence, the changes are a likely indication of what’s to come in terms of transparency, accountability and regulation under the new regime and new legislation, of which we will know more as the year progresses.
Code of Conduct for Aged Care – 1 December 2022
The Code of Conduct for Aged Care (Code) was introduced on 1 December 2022 and applies to approved providers, governing persons and aged care workers.
The Code places direct obligations on approved providers, governing persons and all persons who manage, are employed or engaged by an approved provider to provide care and services.
Consequences of non-compliance include regulatory action by the Aged Care Quality and Safety Commission (Commission) and substantial civil penalties for organisations and individuals. The Commission also has powers to impose banning orders on individuals (including members of governing bodies) for breaches of the Code which prevent individuals from working in aged care services indefinitely or for prescribed periods.
Providers should have in place policies, procedures and resources to support knowledge of the Code through all levels within the organisation and its application to arrangements that providers have with contractors. Providers should be able to apply the Code as an integral part of all aspects of its governance, operations and care/service delivery.
Extension of the SIRS to home care services – 1 December 2022
The Serious Incident Response Scheme (SIRS) was extended to providers of home care services on 1 December 2022.
The definition of ‘reportable incident’ was 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 in the community.
Providers of home care services must have an effective incident management system through which they manage and prevent incidents, and must have processes in place to ensure that reportable incidents are identified and reported in accordance with the Quality of Care Principles 2014 (Cth) (Quality of Care Principles).
These obligations include reporting reportable incidents within specific timeframes and providing in the report specific information about the incident, actions taken in response to the incident, any harm caused and assessments undertaken to ensure the safety, health and well-being of the individuals affected by the incident.
Providers of home care services should ensure that SIRS reporting is now embedded in their incident reporting processes and culture. Additionally, providers’ quality systems and procedures should enable meaningful SIRS data to be extracted and used in the broader clinical and practice governance context including to manage and prevent incidents, review trends and more generally support continuous improvement in the delivery of safe and quality care and services. We covered SIRS in home care in our previous article which focused on questions providers should ask as part of compliance with SIRS.
Suitability of approved providers and key personnel to be involved in the provision of aged care– 1 December 2022
Changes were made to the notification periods for a change of circumstances that materially affects the suitability of an approved provider or certain events that relate to key personnel - these were shortened from 28 days to 14 days after the event occurred.
Approved providers must conduct and document an annual assessment of each person who is key personnel against the ‘suitability matters’.
A provider must be ‘reasonably satisfied’ that the person is suitable to be involved in the provision of aged care. Information should be sought from the key personnel directly, and providers should undertake their own enquiries regarding each person’s suitability.
Providers should consider how these assessments are incorporated into existing governance and documentation procedures and assessed for effectiveness and robustness against the requirements under the Aged Care Act.
Restrictive Practices: Substitute Decision-Maker – 1 December 2022
Changes to the Quality of Care Principles commenced on 1 December 2022 that introduced the definition of a ‘restrictive practices substitute decision-maker’.
An individual or a body will be the restrictive practices substitute decision-maker where they have been appointed under a State or Territory law with the authority to give consent to the use of the restrictive practice in relation to the care recipient if the care recipient lacks capacity to give that consent.
The amendments provide a mechanism for determining a restrictive practices substitute‑decision maker in circumstances where:
- a care recipient lacks capacity to provide consent;
- there is no individual or body appointed as the restrictive practices substitute‑decision maker; and either
- there is no clear mechanism under state or territory laws where the care recipient receives services for appointing such an individual; or
- an application has been made for the appointment of such a person but there is a significant delay in deciding the application.
In these circumstances, the restrictive practices substitute‑decision maker must be identified in accordance s 5B of the Quality of Care Principles which sets out the following hierarchy:
- the restrictive practices nominee appointed by the care recipient;
- the care recipient’s partner who has close and continuing relationship (for example their current spouse/partner);
- a family member or friend who has agreed in writing to act as the care recipient’s restrictive practices substitute‑decision maker and who has been a carer for the care recipient on an unpaid basis, who has a close and continuing relationship with the care recipient and who has a personal interest in the care recipient’s welfare;
- a family member or friend who has agreed in writing to act as the care recipient’s restrictive practices substitute‑decision maker and who has a close and continuing relationship with the care recipient and who has a personal interest in the care recipient’s welfare;
- a person who is authorised to consent to medical treatment/procedures in relation to the care recipient under the relevant State or Territory law.
Any person who acts as a restrictive practices substitute-decision maker must have decision making capacity.
These changes were made in response to some of the difficulties experienced by providers following the implementation of the new restrictive practices regime in 2021. In particular existing state and territory laws may need to be revised to facilitate obtaining the consent to the use of restrictive practices as a last resort. The changes are intended to be temporary to allow the states and territories time to review their existing laws and to implement changes if needed.
Providers should review their restrictive practices policies and related documentation (including regarding medication management issues) to ensure alignment with these requirements.
Providers should consider how staff are supported to understand and identify when a person is able to make decisions and give consent and when recourse may still be required to external authorities (eg in NSW, the Guardianship Division of NCAT).
Home care pricing – 1 January 2023
Changes were made to the User Rights Principles 2014 (Cth) (User Rights Principles) which govern what fees an approved provider of home care services may charge and how these may be charged.
Care management is now a compulsory service which must be provided (and charged) to all care recipients even where they have chosen to self-manage their home care package.
All home care providers must now publish their fees in a Pricing Schedule which is a standard form document. This Pricing Schedule must be provided to care recipients, and must be reviewed at least once each year.
The reforms saw the removal of exit fees and the introduction of caps on the prices for care management and package management.
There is now a prohibition on charging for business costs and the costs for providing care and services through a subcontracting/brokerage arrangement as separate costs.
Providers should ensure that their charging practices and pricing are consistent with the changes.
They should also consider what their home care agreements say about changes to their fees (including whether they comply with the new requirements or require amendment) and should consider how and when they will review their prices, including how these changes will be communicated to and negotiated with care recipients and documented.
Providers should be particularly careful about increasing prices where there is not clear language in their consumer agreements that support the exact increase that is proposed (eg increasing prices by more than CPI without consent is problematic where the agreement only contemplates an annual CPI increase).
Providers should also ensure that they comply with their obligations under the Australian Consumer Law on pricing matters.
Quarterly Financial Reports and information about an aged care service that may be made publicly available – 30 March 2023
From 30 March 2023, the Secretary may issue Notices which require providers to provide updated information in relation to the Quarterly Financial Reports submitted by the provider.
Notices issued by the Secretary may specify information or documents that must be provided, whether or not the information or documents are required by or under the Aged Care Act to be included in a Quarterly Financial Report.
The Information Principles 2014 (Cth) (Information Principles) provide that the Secretary may make certain information about an aged care service publicly available. The list of information in the Information Principles has been expanded to include information provided to the Secretary in response to a Notice to provide updated information about a matter included in, or required to be included in, a Quarterly Financial Report.
Providers should review their processes and information systems to ensure that they are able to extract the necessary information to comply with quarterly reporting obligations and ensure that they are aware of the information that may be made publicly available by the Australian Government.
Restrictive Practices: Behaviour Support Plans – 1 April 2023
Changes to the Quality of Care Principles commenced on 1 April 2023 in relation to the matters to be set out in behaviour support plans if the use of a restrictive practice has been assessed as being necessary.
If the use of a restrictive practice has been assessed as being necessary, providers must ensure that the behaviour support plan now also sets out the following (in addition to the requirements that applied before 1 April 2023 for matters that must be set out in that plan):
- the name of the restrictive practices substitute‑decision maker for the restrictive practice in relation to the care recipient;
- a description of the approved provider’s consultation with the care recipient (if they have capacity to consent) or the substitute decision maker of the care recipient (if they do not have capacity);
- the record of informed consent (by the care recipient or the restrictive practices substitute decision-maker) must include how long the restrictive practice is to be used (including its duration, frequency and intended outcome).
If a restrictive practice is used the behaviour support plan must now also set out whether its use was in accordance with the informed consent (including, as noted above, its duration, frequency and intended outcome).
Additionally, if a need for ongoing use of restrictive practice is indicated, the behaviour support plan must now also include a description of the provider’s consultation with the care recipient or their restrictive practices substitute decision-maker about the ongoing use of the restrictive practice and how it is to be used (including its duration, frequency and intended outcome).
Providers should consider whether their behaviour support plan documentation should contain prompts or a checklist to ensure that all information that must be in a behaviour support plan can be included.
Providers should review and consider whether current training programs and materials have a strong focus what quality documentation looks like and the importance of documentation in relation to completing behaviour support plans.
Younger persons in aged care – 1 May 2023
From 1 May 2023, certain persons need to provide additional evidence to accompany their application to the Secretary to be approved as a care recipient for residential aged care.
These requirements do not apply where a person is:
- at least 65 years of age;
- at least 50 years of age and is from an Aboriginal or Torres Strait Islander community; or
- homeless or at risk of homelessness and is at least 50 years of age.
However, where the application relates to the provision of respite care and is being made on the basis that the person urgently needs care and it was not practicable to apply for approval beforehand, the requirement for the additional documentation does not apply.
Providers should where possible confirm prior to the entry of any person where they are under the age of 65 (or 50 in the case of Aboriginal or Torres Strait Islander persons) that the person has been approved as a care recipient to be eligible to receive subsidies in respect of that care recipient.
Aged care worker wage increases – 30 June 2023 and 1 July 2023
The Fair Work Commission’s recent Aged Care Work Value Case saw minimum award wages for certain classifications of residential aged care and home care workers increase by 15% from the first full pay period on or after 30 June 2023.
In response, the Australian Government increased aged care funding from 1 July 2023 (through increases to AN-ACC funding and a 11.9% increase to home care subsidies).
Additionally, from 1 July 2023 the Annual Wage Review Decision saw minimum award wages increased by a further 5.75%.
In the lead-up to 30 June, we saw our approved provider clients undertaking extensive work planning for payroll changes. This included reconciling role classifications under the relevant awards to classifications under a provider’s Enterprise Agreements as well as communicating the increases to workers, including the actual increases for those workers who were already paid above minimum award rates. This was coupled with a broader exercise involving pricing review and increases together with the required consumer consultation and changes to consumer-facing agreements and other documents.
As part of the increase in funding, the Australian Government has foreshadowed that reporting obligations will be updated and will require providers to:
- attest that all funding provided to implement the 15% increase to minimum award wages rates is passed through to workers; and
- provide additional information from Quarter 4 2023-2024 regarding wages, including the minimum and maximum wage rates for direct care workers as well as information on the primary way workers are being paid (i.e. Award, Enterprise Agreement, Individual Agreement).
The information in the Quarterly Financial Report will be monitored for compliance and to identify sector trends and trends. The Department of Health and Aged Care’s guidance and the Exposure Draft for changes to the Information Principles foreshadows that information on labour costs will be made public and it is expected that this information will be published from January 2024.
Providers should confirm that they have undertaken the necessary payroll changes and communications with staff to implement these changes. Further, providers should ensure that any changes to pricing has been undertaken consistent with their obligations under consumer agreements, the aged care legislation and the Australian Consumer Law.
24/7 Registered Nurses – 1 July 2023
From 1 July 2023, providers must have at least one Registered Nurse (RN) on duty at all times at each residential aged care service they operate and where they provide residential or flexible care in a residential facility, unless an exemption under the Quality of Care Principles has been granted.
Providers must within 7 days from the end of a calendar month (even where an exemption has been granted) give the Secretary a report that includes the following information in relation to each residential facility for the prior calendar month:
- each period of 30 minutes or more (the period) where a RN was not on site and on duty on each day during the calendar month where care was being provided to care recipients in the residential facility;
- the reason a RN was not on site or on duty (or both) during the period;
- alternative arrangements that were made for the period to ensure the clinical needs of care recipients in the facility were met, or a statement that no alternative arrangements were made; and
- any other information that is required to be provided in the (approved form) report.
The Quality of Care Principles provide that the Secretary may make a decision to grant an exemption only if:
- the facility is located in an area with a Modified Monash Model (MMM) Category of MMM 5, MMM 6 or MMM 7; and
- there are no more than 30 operational places at the Facility on the day of the Secretary’s decision; and
- the Secretary is satisfied that the provider has taken reasonable steps to ensure that the clinical care needs of the care recipients in the facility will be met during the period for which the exemption is in force.
Exemptions may only be granted for a period of no more than 12 months and must not begin before the day on which the Secretary grants the exemption.
When making a decision regarding whether to grant an exemption, the Secretary must have regard to:
- any sanctions imposed on the approved provider;
- certain notices under issued under the ACQSC Act. This includes a notice of intention to impose sanctions; a notice requiring an undertaking to be given about remedying non-compliance; a notice to agree to certain matters if revocation of approval is being considered; or compliance notices issued in respect of incident management provisions; and
- any information given to the Secretary by the Commission that the Secretary has requested for the purposes of the Secretary’s function or powers.
Providers should ensure that they undertake a systematic approach to the preparation of the monthly report required to be provided in respect of each residential aged care service. We recommend that the records used to provide the data for the monthly reports be detailed to ensure that providers have robust evidence to demonstrate how the clinical needs of residents are being met.
Providers should be aware of 24/7 RN requirement, the basis for an extension and reporting obligations.
Financial viability of approved providers – 1 July 2023
Following changes to the Aged Care Quality and Safety Commission Rules 2018 (Cth) which commenced on 1 July 2023, the functions of the ACQSC have been broadened to include powers to monitor, and respond to approved providers that are potentially at risk of insolvency.
The ACQSC’s functions include:
- monitoring the financial viability of approved providers;
- identifying approved providers who are potentially at risk of insolvency;
- liaising with approved providers according to their level of risk;
- considering whether the ACQSC’s powers can be used to mitigate insolvency risk and to exercise those powers where the ACQSC considers it appropriate for that purpose; and
- informing the Secretary of approved providers who are potentially at risk of insolvency.
Providers should be aware of the expanded functions of the ACQSC to proactively monitor, identify and engage with providers which are potentially at risk of insolvency according to the level of risk assessed by the ACQSC.
Information about an aged care service that must be made publicly available – 1 July 2023
Changes to the Information Principles commenced on 1 July 2023, to specify the information about an aged care service that must be publicly available, including:
- the following matters in relation to residential care service operated by an approved provider in a financial year:
- expenditure on care (including labour costs), catering, maintenance, cleaning and laundry and administration;
- profit or loss,
- the approved provider’s income and expenditure in relation to a home care service operated by an approved provider in a financial year;
- the kind of feedback and complaints received by the approved provider in a reporting period;
- improvements made by the approved provider in relation to the quality of the service in a reporting period;
- the representation of different demographic groups in the membership of the governing body of the approved provider in a reporting period for the provider (to the extent that the provider has given this information to the Secretary);
- initiatives that the approved provider has implemented to support diverse and inclusive environment for care recipients and staff members in a reporting period;
- the total number of persons to whom care is provided through the service at the end of a reporting period;
- the occupancy rate during a reporting period (for residential care only);
- the number of persons who entered the service during a reporting period; and
- the number of persons for whom the approved provider ceased to provide care during a reporting period.
Providers should be aware of the reporting obligations and ensure that systems and processes are established to accurately collect this information.
- the following matters in relation to residential care service operated by an approved provider in a financial year:
Care minutes in residential aged care – 1 October 2023
From 1 October 2023, it will be mandatory to deliver an average of 200 care minutes per resident per day. The care may be delivered by RNs, enrolled nurses and personal care workers/assistants in nursing and must include 40 minutes by an RN.
This will increase to 215 minutes, including 44 RN minutes, from 1 October 2024.
These requirements are not currently reflected in Quality of Care Principles, however the ‘Introduction of 24/7 onsite registered nurse and increased minimum care minutes requirements - Supplementary Regulatory Impact Analysis’ indicates that they will be updated closer to October 2023.
Approved providers are required to report on care minutes in their Quarterly Financial Report.
Providers should be aware of the changes and the impact this will have on workforce (including those workers whose contribution will not ‘count’ towards the mandated care minutes eg allied health workers). In particular, providers should be cautious about implementing any pricing or charging practices which require consumers to pay additional fees for services by workers that fall outside the care minutes calculation where those services are otherwise part of the mandated care and services that must be provided under the Quality of Care Principles.
Membership and records of the governing body (Existing Providers) - 1 December 2023
From 1 December 2023, Existing Providers, that is providers who were approved as a provider prior to 1 December 2022 must ensure that its governing body comprises of:
- a majority of members who are independent non-executive members; and
- at least one member who has ‘experience in the provision of clinical care’.
There are limited exceptions to these requirements.
Changes to the Records Principles 2014 (Cth) (Records Principles) will mean that from 1 December 2023, existing approved providers will need to make and keep records regarding:
- Membership of the governing body, including:
- who are the independent non‑executive members;
- who are not independent non‑executive members; and
- who has experience in the provision of clinical care, and the details of that experience for each of those members.
- How the governing body of the approved provider has ensured that staff members:
- have appropriate qualifications, skills or experience to provide the care or other services the approved provider provides to care recipients through an aged care service;
- are given the opportunity to develop their capacity to provide care and those other services.
For New Providers, that is providers who were approved as provider after 1 December 2022, these obligations commenced on 1 December 2022.
Existing Providers should consider:
- Whether any changes are required to be made to the membership of the governing body, in preparation for 1 December 2023.
- How will the independence of each person on the governing body be assessed and documented?
- Are there improvements that can be made to the recruitment and on-boarding processes for board members?
Looking for more detail on independent non-executive members and tips for compliance.
Constitutions (Existing Providers) – 1 December 2023
Where an approved provider is a wholly-owned subsidiary of another body corporate (known as a holding company), and the holding company is not an approved provider, the constitution of the wholly-owned subsidiary (approved provider entity) must not have a clause in its constitution that expressly permits directors of the wholly-owned subsidiary to act in the best interest of the holding company.
For New Providers, these obligations commenced on 1 December 2022.
- Review their Constitution and identify whether it includes a provision that would be inconsistent with this requirement; and
- Seek legal advice about amending the constitution, including to:
- ensure there is enough time for the change to be made, including by reference to notice requirements under the constitution for meetings of members/shareholders; and
- consider if changes to the constitution also need to be notified to the Australian Charities and Not-for-profits Commission.
Consider whether the changes impact on group funding arrangements and/or the management/use of refundable deposits and prudential compliance.
Quality Care Advisory Bodies (Existing Providers) – 1 December 2023
From 1 December 2023, approved providers (except those that are a State or Territory, a State or Territory authority, or a local government authority), must comply with the requirement to establish and maintain a Quality Care Advisory Body (QC Advisory Body).
The purpose of a QC Advisory Body is to provide feedback to the governing body of an approved provider on the quality of care provided to consumers.
The Accountability Principles 2014 (Cth) (Accountability Principles) require that a QC Advisory Body must include:
- a member who is one of the key personnel of the approved provider and who has appropriate experience in the provision of aged care;
- a member who is directly involved in the delivery of aged care or if the approved provider delivers clinical care – a person who is directly involved in the provision of clinical care; and
- a member who represents the interests of care recipients, for example a care recipient, a member of a consumer advisory body (if established), a member of an organised consumer advisory service or a consumer advocate.
A QC Advisory Body can be comprised of other members, but the minimum membership criteria must still be met.
Existing Providers are not required to replace or rename any existing committees or bodies which fulfil similar functions to a QC Advisory Body. However any existing sub-committee or body which fulfils the role of a QC Advisory Body must also comply with membership requirements and responsibilities of a QC Advisory Body.
The QC Advisory Body must provide written reports to the governing body of a provider at least once every 6 months which must address the quality of care provided at each of the providers’ services and must be consistent with requirements of the Accountability Principles.
The report must include any concerns that the QC Advisory Body has about the quality of care provided (for each service) during the reporting period and any updates about the quality over time.
The governing body of an approved provider must:
- consider any reports or any feedback provided by the QC Advisory Body when making decisions in relation to the quality of the aged care provided through its services; and
- advise the QC Advisory Body, in writing, as to how the governing body considered the report or feedback it provided.
The QC Advisory Body is not expected to provide the governing body direct feedback or advice on individual matters, complaints and consumer feedback, but rather is responsible for providing feedback on larger issues and trends regarding the quality of care delivered by the approved provider.
For New Providers, these obligations commenced on 1 December 2022.
Find out more detail on Quality Care Advisory Bodies and compliance tips for providers.
Consumer Advisory Body (Existing Providers) – 1 December 2023
From 1 December 2023, approved providers must offer to consumers and their representatives the opportunity to establish one or more Consumer Advisory Bodies to give the governing body feedback about the quality of the care provided.
This offer must be made in writing at least once every 12 months.
If a Consumer Advisory Body is formed, the governing body is required to consider the Consumer Advisory Body’s feedback when making decisions in relation to the quality of the aged care.
The governing body should then advise the Consumer Advisory Body, in writing, as to how the governing body considered the report or feedback it provided.
For New Providers, these obligations commenced on 1 December 2022.
Voluntary Assisted Dying – Various Dates
Voluntary Assisted Dying (VAD) legislation has been passed in each State of Australia.
19 June 2019
1 July 2021
23 October 2022
1 January 2023
31 January 2023
New South Wales
19 May 2022 with access to VAD commencing on 28 November 2023
The Australian Capital Territory and Northern Territory are expected to introduce legislation relating to VAD in late 2023 and 2024 respectively. It is important that providers are aware of the VAD legislation in the jurisdictions in which they operate.
Providers should consider implementing training and education sessions for all staff to ensure they are aware of:
- the organisation’s position in relation to VAD;
- what they are and are not permitted to do under the applicable VAD legislation; and
- what actions constitute offences noting that there are significant penalties to both corporations and individuals, and possible imprisonment.
Similarly, it is essential that all approved providers ensure their policies and procedures reflect the requirements and processes under the VAD legislation relevant to each relevant jurisdiction.
 See s 15NC to s 15NI of the Quality of Care Principles which sets out requirements for assessing and reporting the 2 categories of reportable incidents – Priority 1 (24 hours) and Priority 2 (30 days), and other related reporting obligations.
 See s 63-1A Aged Care Act and s 8C of the ACQSC Act regarding ‘suitability matters’ and s 53 of the Accountability Principles regarding the record requirements.
 Provider responsibilities relating to governance – Guidance for approved providers (30 November 2022), p 28.
 Voluntary Assisted Dying Act 2021 (Qld), Voluntary Assisted Dying Act 2021 (SA); Voluntary Assisted Dying Act 2019 (WA); Voluntary Assisted Dying Act 2019 (Vic); End of Life Choices (Voluntary Assisted Dying) Act 2021 (Tas); and Voluntary Assisted Dying Act 2022 (NSW).
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