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Aged Care (Living Longer Living Better) Bill 2013

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2010-2011-2012-2013

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

AGED CARE (LIVING LONGER LIVING BETTER) BILL 2013

 

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Mental Health and Ageing, the Hon Mark Butler MP)





AGED CARE (LIVING LONGER LIVING BETTER) BILL 2013

 

OUTLINE

 

The Living Longer Living Better aged care reform package was announced on 20 April 2012. The package encompasses a comprehensive ten year plan to reshape aged care.

 

The Aged Care (Living Longer Living Better) Bill 2013 is one of five Bills amending the Aged Care Act 1997 and related legislation to give effect to the Living Longer Living Better reforms.

 

The Aged Care (Living Longer Living Better) Bill 2013 implements reforms in four key areas:

 

·          changes relating to residential care;

·          changes to establish a new type of care (home care);

·          changes relating to governance and administration; and

·          changes that are minor, administrative or consequential.

 

As the result of further consultation on the Bills and the deliberations of the Senate Community Affairs Legislation Committee, Government amendments to the Aged Care (Living Longer Living Better) Bill 2013 are proposed.

 

These Government amendments:

 

·          address a number of the recommendations of the Senate Community Affairs Legislation Committee;

·          address minor, unintended drafting anomalies identified since the Bill was introduced; and

·          make consequential changes to the National Disability Insurance Scheme Act 2013, which commenced operation after the introduction of the Aged Care (Living Longer Living Better) Bill 2013.

 

Financial Impact Statement

 

The Bill gives effect to parts of the Living Longer Living Better package of reforms under which the Government will provide $3.7 billion over 5 years from 2012-13.

 

The proposed Government amendments will not have any impact on the overall costings for the package of reforms.



 

Statement of Compatibility with Human Rights

 

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

 

Aged Care (Living Longer Living Better) Bill 2013

 

The Government amendments are 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 Government amendments

 

In addition to addressing minor, unintended drafting anomalies and updating cross-references to other Commonwealth legislation, the Government amendments propose to make the changes set out below.

 

The establishment of the Aged Care Pricing Commissioner is brought forward from 1 January 2014 to 1 August 2013 to give more time for the Aged Care Pricing Commissioner to establish his or her systems and processes before commencing receiving applications from 1 October 2013. This also gives approved providers more time to apply for approval to charge an accommodation payment that is higher than the amount determined by the Minister. This amendment provides greater certainty for approved providers in making their forward plans and has no impact on care recipients, as 1 July 2014 will continue to be the commencement date for provisions relating to the charging and payment of the new kinds of accommodation payments.

 

In order to align amendments to existing provisions relating to the Aged Care Commissioner with provisions relating to the Aged Care Pricing Commissioner, it is proposed that these amendments will also commence on 1 August 2013. This is to ensure that provisions relating to their appointment, termination and other governance matters are expressed consistently.

 

The Government amendments propose to change the name of the new supplement which is designed to assist approved providers of residential care to better meet the needs of people with severe behavioural and psychological symptoms associated with dementia or mental illness. The Senate Community Affairs Legislation Committee recommended that the supplement be called the dementia and behavioural supplement, rather than the dementia supplement, to better reflect the purpose and targeting of the supplement. Following further consultation with Alzheimers Australia it is proposed that the name of the supplement be changed to the ‘dementia and severe behaviours supplement’ in residential care. The proposed name change is in the interests of clarity and does not reflect any change in the arrangements relating to the supplement, such as the eligibility requirements.

 

The Senate Community Affairs Legislation Committee recommended that the dementia supplement in home care also be renamed.  Following further consultation with Alzheimers Australia, it is proposed that supplement be renamed the ‘dementia and cognition supplement’ to better reflect its purpose and targeting.

 

The Government amendments add parents separated from their children by forced adoption or removal to the kinds of people who are recognised for the purposes of the Aged Care Act 1997 as being people with special needs. This means that whether an organisation understands and has a commitment to meeting the needs of people affected by forced adoption or removal practices may be taken into account in making decisions under the Act. These decisions may relate to such matters as the allocation of places or capital grants and the funding of organisations to provide advocacy services or to participate in the Community Visitors Scheme.

 

Human Rights Implications

While the majority of the proposed Government amendments do not engage any human rights issues, the amendment recognising parents separated from their children by forced adoption or removal practices as people with special needs engages the rights specified in Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 states, amongst other matters, that the widest possible protection and assistance should be accorded to the family and that special measures of protection and assistance should be taken on behalf of all children and young people without any discrimination for reasons of parentage or other condition. The government amendments recognise that people who have suffered life-long impacts as a result of the denial of these human rights by forced adoption or removal practices require special consideration at a time in their lives when they have a condition of frailty or disability that makes them dependent on others to meet their basic care needs.

 

Conclusion

The Government amendments are compatible with human rights because, insofar as they engage any human rights issues, they promote the rights specified in Article 10 of the International Covenant on Economic, Social and Cultural Rights by recognising and making provision for the special needs of people who have suffered and continue to suffer as a consequence of the denial of those rights by forced adoption and removal practices.

 

The Hon Mark Butler MP, Minister for Mental Health and Ageing



Aged Care (Living Longer Living Better) Bill 2013

 

NOTES ON CLAUSES

 

Items 1, 6, 7, 8, 9, 10, 11, 12, 13 and 17 - Aged Care Pricing Commissioner

 

During hearings of the Senate Community Affairs Legislation Committee on the Aged Care (Living Longer Living Better) Bill, stakeholders advised that it would be desirable for the Aged Care Pricing Commissioner to be established prior to 1 January 2014 so that providers could have more time to apply to the Commissioner for approval to charge accommodation payments that are higher than the maximum set by the Minister. This would provide certainty about the prices that they may charge from 1 July 2014.

 

Item 1 therefore amends clause 2(1) of the Aged Care (Living Longer Living Better) Bill 2013 to provide that all of the provisions in Schedule 2 that relate to the establishment of the Aged Care Pricing Commissioner (and consequential changes relating to the Aged Care Commissioner) commence on 1 August 2013 rather than on 1 January 2014.

 

Subject to the identification of a person to fulfil the role of Aged Care Pricing Commissioner, this enables the Aged Care Pricing Commissioner to commence work prior to 1 January 2014. It is proposed that Principles made under the Aged Care Act 1997 will describe the approvals process for providers to apply to the Aged Care Pricing Commissioner to charge an accommodation payment that is higher than the maximum amount set by the Minister. The Principles will enable applications to be made from 1 October 2013. This gives the Aged Care Pricing Commissioner a reasonable period to establish systems and processes before receiving applications. This change also gives approved providers additional time to make applications in respect of accommodation payments that will have effect from 1 July 2014.

 

Schedule 2 to the Aged Care (Living Longer Living Better) Bill 2013 also amends existing provisions relating to the Aged Care Commissioner to ensure that these provisions align with those of the new Aged Care Pricing Commissioner. It is therefore proposed that these items also commence on 1 August 2013. This ensures that provisions relating to the appointment, termination and other governance matters are consistent between the Aged Care Commissioner and the Aged Care Pricing Commissioner from 1 August 2013.

 

Item 6 provides that the Minister may make Fees and Payments Principles to take effect from 1 August 2013. Previously it was proposed that these Principles be made to take effect from 1 July 2014, but by changing the commencement date to 1 August 2013 this enables matters relating to applications for, and approvals of, higher accommodation payments to be prescribed from 1 August 2013. It is proposed that the Principles will subsequently be amended to include provisions that will commence from 1 July 2014.   Item 17 makes a related and consequential change to item 236 of Schedule 3 to the Aged Care (Living Longer Living Better) Bill 2013 to remove the reference to the Fees and Payments Principles commencing on 1 July 2014 and to renumber the Grants Principles which will continue to be made to take effect from 1 July 2014.

 

Items 7 to 13 make changes to the transitional provisions in Part 2 of Schedule 2 to the Aged Care (Living Longer Living Better) Bill 2013 to ensure that transitional provisions relating to the Aged Care Pricing Commissioner commence from 1 August 2013.

 

Item 2 - People with special needs

This item amends section 11-3 of the Aged Care Act 1997 to include, as people with special needs, parents separated from their children by forced adoption or removal. This is consistent with the recommendation of the Senate Community Affairs Legislation Committee.

 

This means that whether an organisation understands and has a commitment to meeting the needs of people affected by forced adoption or removal practices may be taken into account in making decisions under the Act. These decisions may relate to such matters as the allocation of places or capital grants and the funding of organisations to provide advocacy services or to participate in the Community Visitors Scheme.

 

Items 3, 5 and 19 - Home Care

Item 3 removes a note under subsection 46-1(1). The note is no longer relevant because of changes that are being made to subsection 46-2.

 

Item 5

Item 196 of Schedule 2 to the Aged Care (Living Longer Living Better) Bill 2013 describes transitional arrangements for providers approved to provide home care or flexible care prior to 1 July 2013. The transitional provisions ensure that a provider for whom there is in force an approval to provide community care is taken to be approved to provide home care from 1 July 2013. Similarly a provider for whom there was in force an approval to provide flexible care is taken, from 1 July 2013, to be approved to provide for both home care and flexible care.

 

As currently drafted, the language in item 196 of Schedule 1 of the Bill may suggest that providers who have an approval, but no allocation of places, are not covered by the transitional arrangements. That is, there will be entities that have been approved under subsection 8-1(1) as providers of community care or flexible care, but the approval will not be in force because they do not yet have an allocation of places.

 

To ensure that the transitional provisions operate effectively for these providers, item 5 amends item 196 of the Aged Care (Living Longer Living Better) Bill 2013 to ensure that these providers are appropriately covered by the transitional arrangements.

 

Item 19 makes consequential changes to the National Disability Insurance Scheme Act 2013 (NDIS Act). Where the term 'community care' appears in the NDIS Act, it is proposed that these references be replaced with references to ‘home care’ from 1 July 2013. Item 19 therefore:

 

·          repeals the definition of community care in section 9 of the NDIS Act and inserts a new definition of home care. Home care is defined as having the same meaning as in the Aged Care Act 1997; and

·          replaces references to community care with references to home care in paragraph 29(1)(b) and in the note in subsection 29(1).

 

Item 4 - Technical amendments

As a result of changes to social security legislation, there are outdated references to the Social Security Act 1997 in sections 85-6 and 85-7 of the Aged Care Act 1997 . It is proposed that these be updated to reference the Social Security (Administration) Act 1999 . These changes are purely consequential and do not affect the operation of sections 85-6 and 85-7.

 

These items therefore amend:

·          subsection 85-6(1) to replace the reference to section 1239 of the Social Security Act 1991 with a reference to section 126 of the Social Security (Administration Act) 1999;

·          paragraph 85-7(1)(a) to replace the reference to section 1240 of the Social Security Act 1991 with a reference to section 129 of the Social Security (Administration Act) 1999;

·          paragraph 85-7(1)(b) to replace the reference to section 1243 of the Social Security Act 1991 with a reference to section 135 of the Social Security (Administration Act) 1999;

·          subsection 85-7(2) to replace the reference to section 1240 of the Social Security Act 1991 with a reference to section 129 of the Social Security (Administration Act) 1999.

 

Item 14 - Dementia and severe behaviours supplement

The Senate Community Affairs Legislation Committee recommended that the name of the dementia supplement be changed to better reflect the range of mental health conditions relevant to payment of the dementia supplement. Following further consultation with Alzheimer’s Australia it is proposed that in residential care, the supplement be referred to as the dementia and severe behaviours supplement.    

 

This item therefore amends proposed subparagraph 44-5(1)(a)(iv) of the Aged Care Act 1997 to refer to the dementia and severe behaviours supplement in residential care.

 

Item 15 - Dementia and cognition supplement

The Senate Community Affairs Legislation Committee recommended that the names of the dementia supplements be changed to better reflect the range of conditions relevant to payment of the supplement. Following further consultation with Alzheimer’s Australia it is proposed that in home care, the supplement be referred to as the dementia and cognition supplement.    

 

This item therefore amends proposed subparagraph 48-3(1)(a)(iii) of the Aged Care Act 1997 to refer to the d ementia and cognition supplement in home care.

 

Item 16 - Grant Principles

Item 159 of the Aged Care (Living Longer Living Better) Bill 2013 amends subsection 72-1(2) to provide that any allocation must meet the criteria for allocations specified in the Residential Care Grant Principles. From 1 July 2014, the Residential Care Grant Principles will no longer exist and will be replaced by the Grant Principles. A consequential change is therefore needed to subsection 72-1(2), from 1 July 2014, to ensure that the subsection appropriately references the Grants Principles from that time.

 

Item 18 - Accommodation supplement

In order to provide certainty to approved providers about whether or not their buildings will be taken to be new or significantly refurbished (entitling them to a higher accommodation supplement from 1 July 2014), this item enables provisions relating to the Secretary determining the status of a building to have effect from 1 January 2014 (ahead of the supplement itself commencing from 1 July 2014).

 

Items 20 to 23 - Saving instruments

These items make technical changes to the transitional and savings provisions relating to instruments made under the Aged Care Act 1997 that are described in item 216 of Part 3 of Schedule 5 of the Aged Care (Living Longer Living Better) Bill 2013. The changes ensure that any instruments made under the Aged Care Act 1997 prior to 1 July 2014 are retained from 1 July 2014, where these instruments could be made under corresponding provisions in the Aged Care (Transitional Provisions) Act 1997. These are minor drafting changes to ensure that the transitional and savings provisions operate as intended.

 

Items 24 to 26 - Saving processes

These items make technical changes to transitional and savings provisions relating to applications, requests and other processes begun under the Aged Care Act 1997 , prior to 1 July 2014 (as described in item 217 of Part 3 of Schedule 5 of the Aged Care (Living Longer Living Better) Bill 2013). The changes ensure that processes commenced under the Aged Care Act 1997 prior to 1 July 2014, can continue from 1 July 2014 where there are corresponding provisions in the Aged Care (Transitional Provisions) Act 1997 . These are minor drafting changes to ensure that the transitional and savings provisions operate as intended.