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Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019



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ISSN 1328-8091

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BILLS DIGEST NO. 49, 2019-20 11 NOVEMBER 2019

Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 Alex Grove Social Policy Section

Contents

Purpose of the Bill ........................................................... 2

Background ..................................................................... 2

Aged care quality regulation ....................................... 2

Carnell-Paterson Review ............................................. 2

Establishment of the Commission .............................. 4

Senate Standing Committee on Community Affairs inquiry .............................................................. 4

Royal Commission into Aged Care Quality and Safety ........................................................................... 5

Committee consideration ................................................ 5

Senate Standing Committee for Selection of Bills ...... 5 Senate Standing Committee for the Scrutiny of Bills .............................................................................. 6

Policy position of non-government parties/independents...................................................... 6

Position of major interest groups..................................... 6

Financial implications ...................................................... 7

Statement of Compatibility with Human Rights................ 7

Parliamentary Joint Committee on Human Rights ..... 7 Key issues and provisions ................................................ 7

Schedule 1 - Approval of providers of aged care ....... 7 Schedule 2—Responsibilities of approved providers etc. .............................................................. 9

Reportable assaults ................................................... 9

Sanctioning powers ................................................... 9

Compliance and enforcement powers .................... 11 Schedule 3—Reconsideration and review of decisions .................................................................... 13

Other provisions ........................................................... 14

Concluding comments ................................................... 14

Date introduced: 16 October 2019

House: Senate

Portfolio: Health

Commencement: Sections 1 to 3 on Royal Assent; Schedules 1 to 4 on the earlier of proclamation or six months after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2019.

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Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 2

Purpose of the Bill The main purpose of the Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 (the Bill) is to amend the Aged Care Act 1997 (the Act) and the Aged Care Quality and Safety Commission Act 2018 (the Commission Act) to transfer the:

• aged care provider approval and

• compliance and sanctioning

functions of the Secretary of the Department of Health (the Secretary) to the Aged Care Quality and Safety Commissioner (the Commissioner).

The Bill also makes consequential amendments to a number of other Acts.1

Background Aged care services support older people who can no longer live without assistance in their own homes. Care is provided in people’s homes, in the community and in residential aged care facilities (nursing homes) by not-for-profit, for-profit and government providers. The Australian Government is the primary funder and regulator of the aged care system.2

Aged care quality regulation Regulation of aged care service quality is shared between the Department of Health (the Department) and the Aged Care Quality and Safety Commission (the Commission). The Department approves providers to provide care under the Act. If providers fail to comply with their responsibilities under the Act, the Secretary can issue a notice of non-compliance or impose sanctions.

The Commission is an independent statutory agency established under the Commission Act. It is responsible for quality assessment and monitoring of aged care providers against the Aged Care Quality Standards, complaints handling, consumer engagement and provider education.3

Carnell-Paterson Review Concerns about the quality and regulation of aged care services have been growing in recent years. Serious failures of care identified at the Oakden Older Persons Mental Health Service4 in Adelaide led the Australian Government to commission an independent Review of National Aged Care Quality Regulatory Processes (the Carnell-Paterson Review). The review examined why longstanding problems at Oakden were not adequately detected by the national quality regulation system.5

The review report was released in October 2017. It made ten recommendations including:

• centralised accreditation, compliance and complaints handling through the establishment of the Commission

1. The Bill makes consequential amendments to the Aged Care (Accommodation Payment Security) Act 2006, the Aged Care (Accommodation Payment Security) Levy Act 2006, the Aged Care (Transitional Provisions) Act 1997, the A New Tax System (Goods and Services Tax) Act 1999, the Healthcare Identifiers Act 2010, the Social Security Act 1991 and the Veterans’ Entitlements Act 1986.

2. A Grove, Aged care: a quick guide, Research paper series, 2018-19, Parliamentary Library, Canberra, updated 5 June 2019. 3. Ibid.

4. The Oakden service was state-run but also received some Australian Government funding. 5. Department of Health (DoH), ‘Review of National Aged Care Quality Regulatory Processes’, Ageing and Aged Care website, last updated 1 January 2019.

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Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 3

• quality indicators and a star-rating system for residential care facilities

• support for consumer rights

• a serious incident response scheme for aged care

• limiting restrictive practices (such as using physical restraints or medicines to control behaviour) in residential aged care

• removing the advance notice that residential providers received when they were to be visited and assessed against aged care standards and

• enhanced complaints handling.6

The Department has recently indicated that all recommendations have either been implemented or are in progress.7

The key recommendation of the review was the establishment of the Commission to centralise accreditation, compliance and complaints handling functions in one body. The review found that the aged care regulatory system was fragmented, with responsibilities split between the Department, the then Australian Aged Care Quality Agency (the Quality Agency) and the then Aged Care Complaints Commissioner (the Complaints Commissioner).8

The review found this fragmentation led to confusion for stakeholders, including consumers and providers:

Despite efforts to ensure clarity in roles among the regulators through their memorandums of understanding, providers express confusion over the delineation of roles between the Quality Agency and the Department in managing compliance with the Standards. There is overlap between the requirement, implemented by the Department, for approved providers to deliver adequate care, and the requirement, implemented by the Quality Agency, for providers to meet the Accreditation Standards.

9

The review noted that ‘best-practice governance arrangements should separate the policy advice agency from the independent regulator’.10 The review recommended centralising aged care quality functions under a single independent Commission in order to:

•Provide more effective regulation of quality and safety

• Provide greater clarity around regulatory roles and responsibilities

• Improve real-time intelligence sharing

• Facilitate better information sharing with consumers

• Enhance the role for consumers in guiding regulatory processes. 11

6. K Carnell and R Paterson, Review of National Aged Care Quality Regulatory Processes, (Carnell-Paterson Review), DoH, Canberra, October 2017, pp. xi-xiii. 7. Senate Community Affairs Legislation Committee, ‘Implementation progress of recommendations from the National Aged Care Quality and Regulatory Processes’, Tabled documents, Health Portfolio, Supplementary Budget Estimates 2019-20,

23 October 2019. 8. Carnell and Paterson, op. cit., p. vii. 9. Ibid., pp. 54-55. 10. Ibid., p. 56. 11. Ibid., p. 78.

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Establishment of the Commission Then Minister for Aged Care Ken Wyatt announced in April 2018 that the Government would implement the above recommendation and establish the Commission. He stated that the new Commission would be ‘a responsive, one-stop shop to prevent failures, highlight quality concerns and have them quickly rectified’.12

The recommendation is being implemented in two stages. In the first stage, the Commission was established by the Commission Act from 1 January 2019, combining the functions of the Quality Agency and the Complaints Commissioner.13 The Commission Act states that it is ‘Parliament’s intention to further the object of this Act by conferring, through future legislative change, additional functions on the Commissioner relating to matters such as the approval of providers of aged care and compliance’.14

The current Bill implements this second stage of the reform. It transfers aged care approval and compliance functions from the Department to the Commissioner. The Government’s intention is for this transfer to occur on 1 January 2020.15 According to the Department, the Minister has agreed to a transition approach to moving compliance staff and process from the Department to the Commission, and a transition working group has been established.16

Senate Standing Committee on Community Affairs inquiry The Senate Standing Committee on Community Affairs (the Community Affairs Committee) began inquiring into the ‘Effectiveness of the Aged Care Quality Assessment and accreditation framework for protecting residents from abuse and poor practices, and ensuring proper clinical and medical care standards are maintained and practised’ in June 2017.17

The Community Affairs Committee released its final report in April 2019. The primary focus of the report was on the provision and regulation of clinical care within residential aged care. The Committee recommended a number of areas where the Commission and the Department should work together with other stakeholders to improve the regulation of clinical care in residential aged care, including but not limited to:

• clarifying responsibilities regarding duty of care

• continuous improvement in levels of quality and safety in aged care

• the development of an industry model of care

• the development of benchmarks for staffing levels and skills mix, including the requirement to have a Registered Nurse on duty at all times

12. K Wyatt (Minister for Aged Care), Powerful new reforms to ensure safe, quality aged care, media release, 18 April 2018. 13. For details, see C Petrie and S Clark, Aged Care Quality and Safety Commission Bill 2018 [and] Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018, Bills digest, 40, 2018-19, Parliamentary Library, Canberra, 2018.

14. Aged Care Quality and Safety Commission Act 2018, subsection 5(2). 15. Aged Care Quality and Safety Commission, ‘About us’, Aged Care Quality and Safety Commission website, updated 25 July 2019. 16. Senate Community Affairs Legislation Committee, ‘Implementation progress of recommendations from the National Aged

Care Quality and Regulatory Processes’, op. cit. 17. Senate Standing Committee on Community Affairs, Effectiveness of the Aged Care Quality Assessment and accreditation framework for protecting residents from abuse and poor practices, and ensuring proper clinical and medical care standards are

maintained and practised, inquiry homepage, The Senate, Canberra. For a discussion of the Senate Standing Committee on Community Affairs’ interim report, and also the House of Representatives Standing Committee on Health, Aged Care and Sport inquiry into the quality of care in residential aged care, see Petrie and Clark, op. cit., pp. 8-9.

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Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 5

• the regulation of medications in aged care

• improving palliative care

• increasing the focus on wellness and reablement and

• achieving better integration of aged care, primary health care and hospital care.18

Royal Commission into Aged Care Quality and Safety The Royal Commission into Aged Care Quality and Safety (the Royal Commission) released its Interim Report on 31 October 2019. The text of the report was finalised in September 2019 (prior to the introduction of the Bill).19 Apart from a footnote noting that ‘[f]rom 1 January 2020, subject to the passage of legislation, the Aged Care Quality and Safety Commission will also take on the provider approval and compliance functions of the Department of Health’, the Interim Report does not mention the Bill.20 The Royal Commission notes that ‘[m]ost of the Royal Commission’s work on quality and safety considerations will be in the final report’, which is due in November 2020.21

The Interim Report was critical of the aged care system as a whole, finding that:

… the aged care system fails to meet the needs of its older, vulnerable, citizens. It does not deliver uniformly safe and quality care, is unkind and uncaring towards older people and, in too many instances, it neglects them. 22

Specifically in terms of quality and safety, the Royal Commission found that the current regulatory system does not ensure an adequate standard of care:

We have heard evidence which suggests that the regulatory regime that is intended to ensure safety and quality of services is unfit for purpose and does not adequately deter poor practices. Indeed, it often fails to detect them. When it does so, remedial action is frequently ineffective. The regulatory regime appears to do little to encourage better practice beyond a minimum standard.

23

The Royal Commission concluded that ‘a fundamental overhaul of the design, objectives, regulation and funding of aged care in Australia is required’. This will be addressed in the Final Report.24

Committee consideration

Senate Standing Committee for Selection of Bills At the time of writing, the Senate Standing Committee for Selection of Bills had deferred consideration of whether to refer the Bill to a committee for inquiry.25

18. Senate Community Affairs References Committee, Effectiveness of the Aged Care Quality Assessment and accreditation framework for protecting residents from abuse and poor practices, and ensuring proper clinical and medical care standards are maintained and practised: final report, The Senate, Canberra, April 2019, pp. xiii-xv.

19. Royal Commission into Aged Care Quality and Safety, Interim report: neglect, volume 1, Canberra, 31 October 2019, p. 16. 20. Ibid., p. 61. 21. Royal Commission into Aged Care Quality and Safety, Aged care in Australia: a shocking tale of neglect, media release, 31 October 2019, p. 1.

22. Ibid. 23. Royal Commission into Aged Care Quality and Safety, Interim report: neglect, op. cit., p. 8. 24. Ibid., p. 10. 25. Senate Standing Committee for Selection of Bills, Report, 7, 2019, The Senate, Canberra, 17 October 2019, p. 3.

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Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 6

Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not yet considered the Bill.

Policy position of non-government parties/independents At the time of writing, no comments by non-government parties or independents specifically on the Bill had been identified.

The Australian Greens (the Greens) and the Australian Labor Party (Labor) expressed broad support in 2018 for the establishment of the Commission.26 Labor also indicated its support for the recommendations of the Carnell-Paterson Review.27

The Greens appear to support the transfer of sanctioning functions to the Commissioner. In their additional comments in the 2018 Senate Community Affairs Legislation Committee report examining the Bills to establish the Commission, the Greens noted that they would ‘continue to ask questions of the Government regarding sanctions to ensure that they too are transferred to the Commission in due course’.28

Position of major interest groups At the time of writing, no comments by key interest groups specifically on the Bill had been identified.

The establishment of the Commission was supported by a majority of stakeholders, including COTA Australia (the consumer peak body for older Australians), and aged care provider peak body Leading Age Services Australia (LASA). However, the Combined Pensioners and Superannuants Association of NSW (CPSA) claimed that the establishment of the Commission would not address the underlying issues in aged care quality.29

In terms of provisions contained in the current Bill, COTA Australia appears to support the transfer of approval and compliance (including sanctions) functions to the Commissioner. It also appears that COTA would like to see the approval function extended to providers of Commonwealth-funded aged care services which are grant-funded outside of the Act.30 Aged and Community Services Australia (ACSA), the not-for-profit aged care provider peak body, supports the transfer of approval and compliance functions to the Commissioner from 1 January 2020.31 The Australian Association of Gerontology, the peak body for professionals working in ageing research, policy and

26. For details, see Petrie and Clark, op. cit., p. 13. 27. J Collins, ‘Second reading speech: Aged Care Quality and Safety Commission Bill 2018 [and] Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018’, House of Representatives, Debates, 19 September 2018, p. 9594.

28. Senate Community Affairs Legislation Committee, Aged Care Quality and Safety Commission Bill 2018 [Provisions] [and] Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], Senate, Canberra, October 2018, p. 38.

29. For details, see Petrie and Clark, op. cit., pp. 13-14. 30. COTA Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into the Provisions of the Aged Care Quality and Safety Commission Bill 2018 and the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 7], September 2018, p. 6.

31. Aged and Community Services Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into the Provisions of the Aged Care Quality and Safety Commission Bill 2018 and the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 13], 28 September 2018, p. 3.

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Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 7

practice, supports sanctioning powers residing with the Commissioner.32 The Older Persons Advocacy Network (OPAN), which provides advocacy services for people in aged care, is ‘hopeful’ that combining aged care complaints, quality and regulation functions under the Commissioner will ‘ensure that the three functions will work together more cohesively’.33 OPAN also supports reportable assaults being notified to the Commissioner, while noting that it hopes the reportable assaults scheme will be replaced by a serious incident response scheme.34

Financial implications The Bill has no financial impact.35

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible with the right to an adequate standard of living and the right to health. In triggering the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act), the Bill protects against arbitrary abuses of monitoring and investigation powers, which the Government considers consistent with the right to privacy and reputation. The Regulatory Powers Act also ensures that privilege against self-incrimination and legal professional privilege are not abrogated by the Bill, which the Government considers consistent with the right to a fair and public hearing.36

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights had not yet considered the Bill.

Key issues and provisions

Schedule 1 - Approval of providers of aged care Currently, the Secretary (or delegate) approves providers to provide aged care under the Act.37 A provider must be an approved provider in order to receive Australian Government subsidies for providing aged care.38

The Bill transfers the function of approving providers from the Secretary to the Commissioner.

Division 8 of the Act sets out the process by which the Secretary approves a person as a provider of aged care. Item 18 of Schedule 1 repeals this division.

32. Australian Association of Gerontology, Submission to Senate Community Affairs Legislation Committee, Inquiry into the Provisions of the Aged Care Quality and Safety Commission Bill 2018 and the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 9], 28 September 2018, p. 1.

33. Older Persons Advocacy Network, Submission to Senate Community Affairs Legislation Committee, Inquiry into the Provisions of the Aged Care Quality and Safety Commission Bill 2018 and the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 8], 28 September 2018, p. 2.

34. Ibid., p. 3. 35. Explanatory Memorandum, Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019, p. 1. 36. The Statement of Compatibility with Human Rights can be found at pages 2-4 of the Explanatory Memorandum to the Bill. 37. Aged Care Act, section 8-1. 38. Ibid., section 7-1.

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Approved providers must notify the Secretary of changes of circumstances that materially affect their suitability to provide aged care.39 Items 19 to 23 of Schedule 1 amend the Act to provide that approved providers must notify the Commissioner instead.

The Secretary can require an approved provider to give information relevant to their suitability to provide aged care at any time.40 Items 24 to 26 of Schedule 1 transfer this power to the Commissioner instead.

The Secretary can also require an approved provider to give information about any lump sums (such as an accommodation bond or deposit) paid to the provider by aged care residents, and about the provider’s ability to refund such lump sum payments when required (for example when the resident leaves the aged care home or dies).41 Items 27 to 34 of Schedule 1 confer this power on the Commissioner as well (but do not remove it from the Secretary).

Division 10 of the Act sets out the circumstances under which an approval as a provider of aged care ceases to have effect (including when the Secretary revokes the approval). Item 36 of Schedule 1 repeals this division.

The functions of the Commissioner are set out in section 16 of the Commission Act. Item 62 of Schedule 1 adds new functions relating to the approval of providers of aged care.

Item 64 of Schedule 1 inserts proposed Part 7A into the Commission Act. Proposed Part 7A details the process by which the Commissioner can approve providers of aged care, as well as the process for the cessation or revocation of an approval. These functions are broadly similar to those currently carried out by the Secretary under Divisions 8 and 10 of the Act. Where there is a significant difference between the current approval functions of the Secretary and the proposed approval functions of the Commissioner, this is highlighted below.

Proposed Division 2 of Part 7A sets out the process for a person to become an approved provider:

• A person may apply, in writing, to the Commissioner to be approved as a provider of aged care (proposed section 63B).

• The Commissioner may request further information regarding the application (proposed section 63C).

• The Commissioner must decide whether to approve the person as a provider of aged care, taking into account a number of matters including those related to their suitability to provide aged care (proposed section 63D). Under the current Act, one of the matters is the person’s conduct and compliance with their responsibilities as provider of aged care.42 Proposed paragraph 63D(3)(e) broadens this to include conduct and compliance as a provider of aged care or other relevant forms of care (possibly such as disability care).

• The Commissioner must notify the person that they have, or have not, been approved as a provider of aged care (proposed section 63E).

Proposed Division 4 of Part 7A sets out the processes by which an approval may cease or be revoked:

39. Ibid., section 9-1. 40. Ibid., section 9-2. 41. Ibid., sections 9-3A and 9-3B. 42. Ibid., paragraph 8-3(1)(e).

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• An approved provider may apply in writing to request the Commissioner to revoke their approval (proposed section 63H). This is a new process which is not specified in the current Act. The Commissioner must revoke the approval if the provider no longer has an allocation of residential or flexible care places, and if appropriate arrangements have been made to ensure any home care recipients will continue to receive care from another provider. The Commissioner must give the provider written notice of their decision to, or not to, revoke the approval.

• The Commissioner must revoke an approval if the provider ceases to be a corporation, ceases to be suitable to provide care, or provided false or misleading information in their application for approval (proposed section 63J).

• The Commissioner must give notice to the provider that they are considering revoking an approval under proposed section 63J, and invite the provider to make submissions about the matter (proposed section 63K).

• If the Commissioner decides to revoke an approval under proposed section 63J, they must give notice that they are revoking the approval. They may also give notice that they are placing limits on the approval prior to its revocation. The Commissioner may not give either notice unless they are satisfied that alternative arrangements have been made for care recipients (proposed section 63L).

Schedule 2—Responsibilities of approved providers etc.

Reportable assaults Currently approved providers of residential care must report suspicions or allegations of assaults on residents to the police and the Secretary.43 Item 22 in Schedule 2 changes this to the police and the Commissioner.

Sanctioning powers Approved providers have responsibilities relating to the quality of care they provide, the rights of care recipients and governance under Chapter 4 of the Act. If a provider fails to comply with these responsibilities, the Secretary can impose sanctions on the provider under Part 4.4 of the Act.

Sanctions that can be imposed include:

• revoking or suspending the provider’s approval, or restricting it to only the services they are currently conducting

• restricting subsidy payments (for example, subsidies could be restricted to current clients only)

• revoking or suspending the allocation of places to the provider, varying the conditions of the allocation, or prohibiting the allocation of further places to the provider

• revoking, suspending, or prohibiting the grant of extra service status to a provider’s residential care service44

• prohibiting the charging of lump sum payments such as accommodation deposits or bonds, requiring the repayment of any lump sums that were overpaid or are due to be refunded, and restricting the use of any lump sum payments

• requiring repayment of grants and

• such other sanctions as are specified in the Sanctions Principles.45

43. Ibid., section 63-1AA. 44. Ibid., Part 2.5 Extra service places. Extra service status allows the provider to charge residents an additional fee in return for providing a higher standard of accommodation, food and services.

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The Secretary must follow the following steps to impose sanctions (unless there is an immediate and severe risk to the safety, health or wellbeing of care recipients, in which case the Secretary can proceed directly to the last step):

1. give the provider a notice of non-compliance

2. give the provider either a notice of intention to impose sanctions, a notice to remedy the non-compliance, or both and

3. give the provider notice of the Secretary’s decision on whether to impose sanctions.46

The Bill transfers these sanctioning functions from the Secretary to the Commissioner. It also makes some minor modifications to the functions. In particular, the Bill streamlines the procedures that must be followed before sanctions can be imposed, and provides greater flexibility to pursue remedial action to address non-compliance. These modifications are outlined below.47

Item 26 of Schedule 2 repeals Part 4.4 of the Act, which sets out the sanctioning functions of the Secretary.

Item 31 of Schedule 2 removes the Sanctions Principles from the list of Principles that may be made by the Minister under the Act.

Item 47 of Schedule 2 amends the Commission Act to add new a function for the Commissioner relating to imposing sanctions. It also adds the function of ensuring compliance with the aged care responsibilities of approved providers, the provisions of the Commission Act and the provisions of the Act. This latter function is outlined in the section of this Digest titled ‘Compliance and enforcement powers’.

Item 52 of Schedule 2 inserts proposed Part 7B into the Commission Act. Proposed Part 7B details the processes for the Commissioner to impose and lift sanctions.

Proposed Division 2 of Part 7B sets out the process for the imposition of sanctions by the Commissioner:

• The Commissioner may impose sanctions for non-compliance with aged care responsibilities. The Commissioner must consider certain matters when deciding whether to impose sanctions. If the Commissioner decides to impose sanctions, the provider must be given written notice of the decision (proposed section 63N).

• The Commissioner may impose different types of sanctions, as listed in proposed section 63R. The list of possible sanctions is the same as those currently available to the Secretary (described above).48

• Unless there is an immediate and severe risk to the safety, health and wellbeing of care recipients, the Commissioner must notify an approved provider of their intention to impose sanctions. The notice must invite the provider to make submissions in relation to the matter (proposed section 63S). If the provider’s submissions are satisfactory, the Commissioner may

45. Ibid., section 66-1. Part 2A of the Sanctions Principles 2014 provides for sanctions requiring the transfer of unspent home care amounts or repayment of any overcharged amounts for home care fees. 46. Ibid., section 67-1. 47. Explanatory Memorandum, op. cit., pp. 36-37. 48. Any other sanctions will no longer be specified in the Sanctions Principles 2014 made under the Act, but in the Aged Care

Quality and Safety Commission Rules 2018 made under the Commission Act.

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require the provider to give an undertaking setting out the action the provider will take to remedy the non-compliance (proposed section 63T). Failure to give the required undertaking, or to comply with the undertaking, can lead to the imposition of sanctions under proposed section 63N. This process is more streamlined than the current process for the Secretary to impose sanctions, as described above.

• If the Commissioner is considering revoking the provider’s approval (defined as a revocation sanction), the Commissioner may give the provider written notice to do any one or more things specified in the notice. The kinds of things that the Commissioner may require are listed, and include providing staff training, providing security for debts owed to the Commonwealth, appointing an adviser to assist with compliance with the aged care responsibilities or transferring allocated places to another approved provider (proposed section 63U). Proposed section 63U appears to give the Commissioner greater flexibility to pursue remedial actions in this situation than the current section 66-2 of the Act.

Proposed Division 4 of Part 7B sets out the processes for the Commissioner to lift sanctions. These are similar to the current processes for the Secretary to lift sanctions.49

Compliance and enforcement powers Part 6.4 of the Act sets out the powers of authorised officers (officers of the Department appointed by the Secretary). These include the power to:

• enter premises with consent or under warrant and exercise monitoring powers (such as searching the premises, taking photographs and inspecting and copying documents) and

• enter premises under warrant to exercise investigation powers relating to the commission of an offence under the Act.

Part 6.4 also provides for the Secretary to require people to attend before an authorised officer to answer questions and produce documents.

Consistent with the transfer of approval and sanctioning functions from the Secretary to the Commissioner, the Bill transfers the compliance and enforcement powers relating to these functions to the Commission. Powers relating to other functions remain with the Department, but are redrafted to trigger the Regulatory Powers Act where relevant. The Regulatory Powers Act provides standard provisions intended as ‘an accepted baseline of powers required for an effective monitoring, investigation or enforcement regulatory regime, whilst providing adequate safeguards and protecting important common law privileges’.50 The Bill also confers new powers for authorised officers of the Department to monitor and investigate providers who repeatedly make false or incorrect funding claims for residents.

Key provisions are briefly outlined below. For a detailed table showing which powers remain in the Act, which powers move to the Commission Act and which powers are new, see the Explanatory Memorandum.51

Item 29 of Schedule 2 repeals Part 6.4 of the Act and substitutes proposed Part 6.4 providing compliance and enforcement powers:

• An authorised officer may enter premises with consent and exercise search powers, ask questions and seek production of documents for the purposes of the Secretary making a

49. Aged Care Act 1997, Division 68. 50. Attorney-General’s Department (AGD), ‘Regulatory powers’, AGD website. 51. Explanatory Memorandum, op. cit., pp. 22-25.

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decision on an application under the Act, or determining whether grant conditions have been complied with (proposed Division 91).

• Monitoring powers (such as powers of entry and inspection) under Part 2 of the Regulatory Powers Act are triggered, with minor modifications, to allow monitoring of the appraisal by residential providers of the level of care needed by each resident (which in turn affects the funding received by the provider) and to allow monitoring of information relating to subsidies (proposed sections 92-1 and 92-2).

• Proposed subsection 92-1(3) triggers monitoring powers under Part 2 of the Regulatory Powers Act with respect to the civil penalty provisions in Division 29A of the Act. Division 29A provides civil penalties for residential providers who repeatedly make false or incorrect appraisals of the level of care needed by each resident. This is a new power.

• Investigation powers (such as powers of entry, search and seizure) under Part 3 of the Regulatory Powers Act are triggered, with minor modifications, to allow investigation of civil penalty provisions under the Act, such as those in Division 29A described above (proposed sections 92-3 and 92-4). This is a new power.

• Notice powers allow the Secretary to require a person to attend before an authorised officer to answer questions and produce documents relating to applications made under the Act, appraisals of the level of care needed by each resident, claims for subsidy and compliance with grant conditions (proposed Division 93).

• The Secretary may appoint an APS employee in the Department as an authorised officer for the purposes of this Part of the Act, but only if the Secretary is satisfied that the employee has suitable training or experience to properly perform the role (proposed section 94-2).

As noted above, the Bill transfers compliance and enforcement powers relating to approval and sanctioning functions to the Commission Act.

Item 57 of Schedule 2 inserts proposed section 64A into the Commission Act. This section provides that an authorised officer (appointed by the Commissioner) may enter premises with consent and exercise search powers where necessary to assist the Commissioner to decide whether or not to approve an aged care provider.

Item 85 of Schedule 2 inserts proposed Part 8A, dealing with the enforcement of responsibilities of approved providers, into the Commission Act:

• Monitoring powers under Part 2 of the Regulatory Powers Act are triggered, with minor modifications, to allow monitoring of approved providers’ compliance with their responsibilities under Chapter 4 of the Act (proposed sections 74B and 74C).52

• Investigation powers under Part 3 of the Regulatory Powers Act are triggered, with minor modifications, to allow investigation of offences against the Act, offences against the Commission Act or offences against the Crimes Act 1914 or the Criminal Code Act 1995 that relate to aged care (proposed sections 74D and 74E).

• The Commissioner may require a person to attend before an authorised officer to answer questions and produce documents relating to whether an approved provider is complying with their responsibilities (proposed section 74F).

The Commissioner currently has the power to appoint authorised complaints officers.53 Item 78 of Schedule 2 repeals this power.

52. Providers’ responsibilities under Chapter 4 of the Aged Care Act 1997 relate to the quality of care they provide, the rights of care recipients and governance. 53. Aged Care Quality and Safety Commission Act 2018, section 73.

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Item 87 of Schedule 2 inserts proposed section 75A into the Commission Act. This section provides that the Commissioner may appoint a person who is a member of the staff of the Commission as an authorised officer for the purposes of the Commission Act, but only if the Commissioner is satisfied that the staff member has suitable training or experience to properly perform the role.

A number of amendments in the Bill replace all references to authorised complaints officers with references to authorised officers. As explained in the Explanatory Memorandum, the effect is to subsume authorised complaints officers into the broader category of authorised officers who can exercise regulatory powers.54

Schedule 3—Reconsideration and review of decisions Consistent with the transfer of approval, revocation and sanctioning decisions from the Secretary to the Commissioner, the Bill also transfers provisions for the review of these decisions from the Act to the Commission Act.

Item 1 of Schedule 3 removes decisions regarding approvals and sanctions from the list of reviewable decisions under the Act.55

Item 5 of Schedule 3 adds a new function for the Commissioner of reconsidering and reviewing certain decisions made under the Commission Act.

Item 6 of Schedule 3 inserts proposed Part 8B into the Commission Act, dealing with the reconsideration and review of certain decisions made under the Commission Act.

Proposed section 74J provides that the following decisions by the Commissioner are reviewable decisions:

• a decision not to approve a provider of aged care

• a decision not to revoke an approval when a revocation is requested by the approved provider

• a decision to revoke a provider’s approval if the provider ceases to be a corporation, ceases to be suitable to provide care, or provided false or misleading information in their application

• a decision to impose a sanction and

• a decision not to lift a sanction.

Proposed section 74K provides that an affected person (as specified in proposed section 74J) may request reconsideration of a reviewable decision.

Proposed section 74L provides that, upon such a request, the Commissioner must either personally reconsider the decision, or cause the decision to be reconsidered by a delegate who was not involved in the original decision. The internal decision review must either affirm the decision, vary the decision, or substitute a new decision.

Proposed section 74M provides that the Commissioner, or a delegate who was not involved in the original decision, may also reconsider a decision on their own initiative where there is sufficient reason to do so.

Proposed section 74N provides that an application may be made to the Administrative Appeals Tribunal for review of a reconsidered decision.

54. Explanatory Memorandum, op. cit., p. 43. 55. Aged Care Act 1997, section 85-1.

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Other provisions The Bill makes consequential amendments to the Aged Care (Accommodation Payment Security) Act 2006, the Aged Care (Accommodation Payment Security) Levy Act 2006, the Aged Care (Transitional Provisions) Act 1997, the A New Tax System (Goods and Services Tax) Act 1999, the Healthcare Identifiers Act 2010, the Social Security Act 1991 and the Veterans’ Entitlements Act 1986. These consequential amendments are minor and are adequately described in the Explanatory Memorandum.56

Schedule 4 of the Bill sets out transitional, application, saving and other provisions. These are adequately described in the Explanatory Memorandum.57

Concluding comments A key recommendation of the Carnell-Paterson Review was to establish the Commission to centralise aged care accreditation, compliance and complaints handling functions in one body. This recommendation is being implemented in two stages, with this Bill being the second stage. The Bill transfers aged care provider approval and compliance and sanctioning functions from the Secretary to the Commissioner. While there has been little commentary specifically on the Bill, its provisions generally appear to be supported by stakeholders and non-government parties. The Royal Commission has flagged its intent to recommend a fundamental overhaul of the aged care system, including regulation. It is not clear whether this will have any impact on the passage of the Bill.

56. Explanatory Memorandum, op. cit., pp. 5-6, 16-17 and 52-53. 57. Ibid., pp. 55-62.

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