AGED CARE Alert: De-regulation of Aged Care – where is it at?

4 December 2014


Audit by Commonwealth government departments

As part of the Commonwealth government’s agenda to cut red tape, the departments for each portfolio have conducted an audit of legislated regulation in place as at October 2013. The aim was to estimate the regulatory burden imposed on organisations, the community and end users of the various services.

The Department of Social Services (DSS) has met this requirement in respect of aged care through documenting regulatory responsibilities and allocating categories of activities, then describing the impact and extent of burden based on assumptions such as frequency of the activity or time required to undertake a specified activity.

The results of the audit have not been released publicly. However, at its meeting on 20 November 2014, the Aged Care Sector Committee asked its members to provide feedback on the key findings of the audit.

The Committee was established as part of the Living Longer Living Better reforms and to date has met 5 times. The Committee is chaired by Professor Peter Shergold and Committee membership comprises of representatives from across the aged care sector, including, peak bodies, large for-profit and not-for-profit providers, consumers, workforce, the National Aged Care Alliance and DSS.

The key findings of DSS’s audit are:

  • Aged care is more regulated compared to other sectors although the extent of the burden varies across the system.
  • The principal regulatory burden relates to assessment of end users i.e. assessing care needs, ability to pay etc, and entering into agreements for the provision of care.
  • Regulatory burden relating to meeting standards, such as quality assurance, was assessed as being a relatively small component of the overall burden in meeting aged care regulation.  However, when compared to other sectors, the burden of meeting standards was deemed to be high.
  • Processes relating to allocation of places was also assessed as being a relatively small component of the overall burden in meeting aged care regulation but high when compared to other sectors.
  • Meeting the requirements regarding application for and reporting on funding was found to be comparable to other sectors.

The Aged Care Sector Committee members were requested to provide feedback by 12 noon Friday 28 November 2014.  We will watch this space and report back on developments.

Repeal of Aged Care Certification requirements

The Omnibus Repeal Day (Autumn 2014) Act (Cth) (Omnibus Repeal Autumn) was given royal assent on 16 October 2014 and took effect from 17 October 2014.

As part of the Omnibus Repeal Autumn, the Aged Care Act 1997 (Cth) was amended so that approved providers no longer need to apply to the Commonwealth for certification for new aged care services or for review of certification for existing services.

A consequential amendment is that certification will not be required to establish eligibility for supplements or for charging accommodation payments.

Approved providers must still ensure that they comply with all other relevant Commonwealth, state or territory regulations, including building, fire and work, health and safety regulations. The Accreditation Standards require approved providers to be able to demonstrate compliance with these regulations.

Further, approved providers must still comply with privacy and space requirements set out in Schedule 1 of the Aged Care (Transitional Provisions) Principles 2014 as these are separate and distinct from certification requirements.

A process is in train to make the associated amendments to the relevant Aged Care Principles in order to give effect to the amendments to the Aged Care Act 1997 (Cth).

Changes to reporting requirements for key personnel

The Omnibus Repeal Day (Spring 2014) Bill 2014 (Cth) (Omnibus Spring Bill) was introduced into Parliament on 22 October 2014.

The Omnibus Spring Bill proposes a significant change to the Aged Care Act 1997 (Cth) by repealing key personnel reporting requirements. Currently approved providers notify DSS of all changes of key personnel using prescribed forms. It has been reported that DSS receives about 10,000 notifications of changes to key personnel each year at an estimated cost to approved providers of $1.16 million.

The current obligation on approved providers to notify DSS within 28 days of a change in circumstances that materially affects the approved provider’s suitability to be an approved provider of aged care still remains.

What may constitute a material change is set out in section 8-3 of the Aged Care Act 1997 (Cth) and this will also continue to apply in relation to the matters that DSS must consider when assessing an application for approved provider status.

This Bill has now passed the Senate with no amendments to the proposed changes to the Aged Care Act 1997 (Cth).

Written by:
Lucinda Smith | Partner | +61 2 9020 5748 |
Ruth Hood | Senior Associate | +61 2 8248 3459 |