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Aged Care Amendment (Movement of Provisionally Allocated Places) Bill 2019

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2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY ALLOCATED PLACES) BILL 2019

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon Richard Colbeck, Minister for Aged Care and Senior Australians, Minister for Youth and Sport)





AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY ALLOCATED PLACES) BILL 2019

 

OUTLINE

 

The Aged Care Amendment (Movement of Provisionally Allocated Places) Bill 2019 (the Bill) amends the Aged Care Act 1997 (the Act) to allow the Secretary of the Department of Health (or her delegates) to allow approved providers of residential aged care to move provisionally allocated residential aged care places from one region to another, within a state or territory.

 

The Australian Government (the Government) has overarching policy responsibility for delivery of aged care services across the country, as part of an end-to-end system covering both residential and in-home aged care.  A key policy objective for the Government is to ensure that residential aged care is available to those older Australians who require it as quickly as possible, and appropriately allocated to address local needs.

 

Approved providers apply for residential aged care places through a process known as the Aged Care Approvals Round, where places are allocated on a provisional basis (known as a provisionally allocated place) to a particular region, until such time as they are able to be operationalised and utilised by a care recipient.  Provisionally allocated places can include those forming part of an aged care facility that is yet to be built, or is currently undergoing construction.

 

Historically, based on an incorrect interpretation of the Act, but otherwise consistent with policy intent, the Department of Health (the department) has considered applications for the movement of provisionally allocated places between regions.  It has come to light that the Act does not permit a variation of the region to which residential aged care places are provisionally allocated.

 

To remedy this issue, the Government is seeking power under the Act to allow the Secretary of the department (or her delegates) to permit approved providers to move previously provisionally allocated places from one determined region to another.  It is in the interests of the community for the Act to allow these movements to occur where a provider can demonstrate that the movement is in the interests of aged care consumers and there is a clear need for places in the new region.  The department is not seeking the power to move provisionally allocated places from one State or Territory to another.

 

This amendment will ensure that legislation aligns with the current practice in relation to the movement of places. 

 

Financial Impact Statement

 

There is no financial impact for the Australian Government by the proposed amendments .

 

 



 

Statement of Compatibility with Human Rights

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

AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY ALLOCATED PLACES) BILL 2019

This Bill is 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 Bill

The Aged Care Amendment (Movement of Provisionally Allocated Places) Bill 2019 (the Bill) amends the Aged Care Act 1997 (the Act) to allow the Secretary of the Department of Health (or her delegates) to allow approved providers of residential aged care to move provisionally allocated residential aged care places from one region to another, within a state or territory.

In line with the Government’s commitment to ensuring ease of access and better quality of care for consumers of aged care services in Australia, it is in the best interests of older Australians for residential aged care places to become operational as quickly as possible.  As such, it is important for the Act to allow provisionally allocated places to be moved from one region to another, where a provider can demonstrate that the movement is in the interests of aged care consumers, there is a clear need for places in the new region, and is not detrimental to the region the provisionally allocated places are currently allocated to.

 

Human rights implications

The Bill engages the following human rights as contained in article 11 and article 12(1) of the International Convention on Economic, Social and Cultural Rights and articles 25 and 28 of the Convention of the Rights of Persons with Disabilities :

·          the right to the enjoyment of the highest attainable standard of physical and mental health; and

·          the right to an adequate standard of living, including with respect to food and housing.

 

The UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

As facilitated by this Bill, the movement of provisionally allocated places to another region will improve the time within which the place is able to operationalise, so that older Australians can access the aged care services they need, when they need them.

Residential aged care affords residents access to structured health care to suit their individual needs, as well as a home that is safe and secure, and provides appropriate food and activities to support social and mental health. These elements are regulated through quality and safety mechanisms to enforce the rights of care recipients to enjoy the highest attainable standards of physical and mental health and an adequate standard of living.

 

Conclusion

The Bill is 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 as it promotes the human right to the enjoyment of the highest attainable standard of physical and mental health and, the right to an adequate standard of living, including with respect to food and housing.

 

 

 

 

Senator the Hon Richard Colbeck, Minister for Aged Care and Senior Australians, Minister for Youth and Sport



AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY ALLOCATED PLACES) BILL 2019

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

Clause 1 provides for the short title of the Act to be the Aged Care Amendment (Movement of Provisionally Allocated Places) Act 2019.

 

Clause 2 - Commencement

This clause provides that the Bill will commence on, or is taken to have commenced on, the day after this Act receives the Royal Assent.

 

Clause 3 - Schedule

This clause provides that any Act that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms.  This is a technical provision which gives operational effect to the amendments contained in the Schedule.  Schedule 1 amends the Aged Care Act 1997 (the Act). 

 

 

SCHEDULE 1 — AMENDMENT TO THE AGED CARE ACT 1997

 

Item 1 - At the end of subsection 15-5(2)

This item adds an additional clause to subsection 15-5(2) which enables a variation to a provisional allocation which will allow the place to be moved to another region within the same state or territory.  The place cannot be moved outside of the state or territory to which it was originally allocated. 

 

As a result of this amendment, approved providers will be able to apply to the department to vary a provisional allocation to enable them to operationalise the place and deliver aged care services to older Australians in a different region to where they were originally allocated, as made under section 14-1(1) of the Act. 

 

The amendment will allow approved providers to operationalise a residential aged care place more quickly, as the basis for an application to move a place is generally that they have been unable to operationalise it in its current location and it is therefore not in use.

 

In line with the Government’s commitment to ensuring ease of access and better quality of care for consumers of aged care services in Australia, it is in the best interests of older Australians for residential aged care places to become operational as quickly as possible.  As such, it is important for the Act to allow provisionally allocated places to be moved from one region to another, where a provider can demonstrate that the movement is in the interests of aged care consumers, there is a clear need for places in the new region, and is not detrimental to the region the provisionally allocated places are currently allocated to.

 

 

 

Item 2 - Subsection 15-5(7)

This item adds additional wording to identify that variations to reduce the number of provisionally allocated places (subsection 15-5(2)(a)) or vary the conditions of allocation for a provisionally allocated place (subsection 15-5(2)(b)) are subject to the matters specified in the Allocation Principles.  The new subsection 15-5(8) will then outline the specific considerations with respect to 15-5(2)(c).

 

The amendment makes clear where the legislation specifies the considerations that the Secretary (or her delegate) must have regard to when making decisions with respect to section 15-5(2).

 

Item 3 - At the end of section 15-5

This item adds an additional clause to subsection 15-5 which will specify the considerations that the Secretary (or her delegate) must be satisfied have been met when making a decision under section 15-5(2)(c).

 

As part of the process for allocating residential aged care places, the particular aged care needs of each planning region are considered with respect to factors such as population growth, current operational places, and the number of places still to become operational.  This then informs the number of places allocated to a particular region, and the most appropriate providers, to meet the identified care needs.

 

As such, when applying to change the region to which a provisionally allocated residential care place has been allocated, the approved provider must be able to adequately demonstrate that the move will appropriately meet the needs of the new region. 

 

In addition, providers need to be able to justify the financial viability and sustainability of the service in the new region, as well as the impact the move will have on the timeframes attached to the place when it was first allocated. 

 

In order to approve a variation to the region of a provisionally allocated place, the Secretary (or her delegate) must consider the factors outlined in the new sub-section 15-5(8) and be satisfied that they have been appropriately met.

 

Item 4 - After section 15-5

This item adds an additional clause which outlines the circumstances where the Secretary (or her delegate) is able to approve, or reject, a variation of the region of a provisionally allocated place, where it would result in the movement of that place to a service with Extra Service Status (ESS).  

 

ESS in residential aged care involves the provision of additional hotel type services, including a higher standard of accommodation, food and services than the average provided by residential aged care homes which do not have ESS.  Residents are required to pay an additional fee for these services, but it does not mean that they receive a higher level of care - providers have to meet designated care standards for all residents. 

 

ESS is granted to the provider and not the residential aged care place.  As such, when a place moves from one service to another in a different region it no longer holds ESS.  If the new service has been granted ESS, the service is able to apply for a variation that would enable them to make that an ESS place.

 

Item 5 - Section 31-3

This item amends the existing title of section 31-3 to ensure this clause applies to the variation of the region of a provisionally allocated place, where it would result in the movement of that place to a service with ESS.  This is important as clause 31-3 is referenced in the new section 15-5A.

 

Item 6 - After subsection 31-3(1)

This item adds a new clause which relates to the variation of the region of a provisionally allocated place, where it would result in the movement of that place to a service with ESS, and links with Item 5 above. 

 

The new section 31-3(1A) outlines the circumstances where a variation to the region of a provisionally allocated place may occur, but states that once moved, under this clause, they are taken not to have ESS.

 

Item 7 - Application of amendment

This item adds a new clause which states that the amendments of this Bill apply to variations of the region to which a provisionally allocated place was allocated when made after the commencement of this particular amendment.  This is irrespective of whether the places themselves were allocated before or after this particular amendment.

 

Variations to the region of a provisionally allocated place which were approved prior to this commencement of this amendment were made in good faith and do not need to be validated, as the rights or interests of approved providers (or other persons) have not been, or will not in future be, adversely affected by the relevant decisions.  As such, the amendments put forward in this Bill are not pertinent to these particular variations.