A new model for regulating aged care – 9 May 2023

We’re developing a new model for regulating aged care as part of the changes to improve the quality and safety of aged care in Australia. In this webinar, we share the details and seek your views on the proposed changes.

Audience:
Health sector
Webinar date:
to
Webinar Link:

Recording and transcript

58:50

 

[Opening visual of slide with text saying ‘Australian Government with Crest (logo)’, ‘Department of Health and Aged Care’, ‘A new model for regulating aged care’, ‘Caroline Turnour’, ‘Assistant Secretary – Harmonisation and Assurance Branch’, ‘Mel Metz’, ‘Assistant Secretary – Legislative Reform Branch’, ‘agedcareengagement.health.gov.au’, ‘9 May 2023’]

[The visuals during this webinar are of each speaker presenting in turn via video, with reference to the content of a PowerPoint presentation being played on screen, with Auslan interpreter signing on screen]

Caroline Turnour:

Good afternoon and thank you all for tuning in to today’s webinar about the proposed new model for regulating aged care. I will call it the new model from hereon. My name is Caroline Turnour and I’m the Assistant Secretary for the Harmonisation and Regulatory Strategy Branch in the Ageing and Aged Care Group of the Department of Health and Aged Care. I am joined by my colleague Mel Metz. Mel is the Assistant Secretary of the Legislative Reform Branch in our Department. Welcome Mel.

Before we start I would like to let you know that we are recording this webinar so that it can be shared for those that are unable to join us today. It will be available on the Department’s website in the next few weeks along with a copy of the slides we’ll be sharing.

I would like to begin by acknowledging the traditional owners and custodians of the land we are virtually meeting on today. Mel and I are based in Canberra on the lands of the Ngunnawal and Ngambri people. I would like to pay my respects to Elders past, present and emerging. I would also like to extend that acknowledgement and respect to any Aboriginal and Torres Strait Islander peoples who are here with us today.

In the webinar today I will introduce you to the main elements we are proposing in the new model. We’re seeking your feedback as part of the consultation we’re undertaking. I will then invite Mel to provide an update on the work being done to prepare for the new Aged Care Act, the updated laws that will govern aged care in Australia. The new model will be written into the New Act. We’ll then do a bit of myth busting in some of the common questions we are asked then follow with a Q&A session where we’ll open the floor to your questions. We’ll work through as many of those as we can today.

There is no option to turn on your video or microphone. Instead please post your questions in the Slido box on the right side of the panel of your screen. If you can’t see Slido you can also access it via the link in the chat on the bottom right hand side. Questions submitted during the registration process will also be considered for the Q&A session. Any questions we don’t get to today we’ll compile and post them with answers on the web page for you to read in the coming weeks.

As I mentioned we are widely consulting on the new model and have released a consultation paper, a New Model for Regulating Aged Care Consultation Paper 2 – Details of the new proposed model. We are seeking your feedback by the 23rd of June. I encourage you to visit the Aged Care Engagement Hub to read the full paper or the summary if you haven’t already, submit your feedback and register for some workshops we’ll be running in early June. We’ll pop the link in the chat now in case anyone has to leave early and also share on screen at the end of the webinar.

So let’s jump in. It’s my job to lead the Department’s work in designing a regulatory model for the aged care sector that rebuilds trust and confidence in Australia’s aged care system. It is a regulatory system that ensures older people receive care that respects their wishes and decisions and maintains their dignity and independence, and a system that supports providers to deliver high quality care and hold them to account when they don’t. My team has been engaging with older people in Australia, providers, our expert advisory panel and other stakeholders in the sector to progress this work. Today I will be outlining the proposed new model which has been informed by stakeholders’ advice and feedback received to date. Before we get into that detail I will outline what regulation is.

Regulation is in very basic terms the rules of engagement. It sets out what is expected of those involved, the rules and the consequences of doing the right thing or not doing the right thing as in rewards and penalties. It influences how we all behave and brings order to our social interactions. It reduces uncertainty and makes life more predictable. It’s essential to a harmonious, efficient, trusting society. It’s a powerful tool for driving change in behaviours and attitudes. It protects health and safety, supports a well functioning society and an efficient economy.

When regulation works well we don’t even notice it. The way we regulate really matters.

Why do we need a regulatory model? There is no question we need a new approach to regulating aged care. In their report the Royal Commission into Aged Care Quality and Safety outlined what is wrong with the current regulatory approach. They said ineffective regulation has been one of the contributing factors to the high levels of substandard care in Australia’s aged care system. The Commission’s recommendations cover important regulatory matters such as provider registration and obligations, monitoring and enforcement, complaints and whistle-blower protections. The new model and the new Aged Care Act responds to the Royal Commission’s recommendations. It is designed to prevent, detect and correct poor provider performance and ensure the autonomy and independence of older people are respected.

So how does the new model achieve this? Let’s start with raising the quality of aged care. The Government is committed to the concept of high quality care. My colleague Mel Metz will take you through how it will be defined in the new Act in her presentation a little later. We are designing the regulatory model to deliver high quality care and this means we need a regulatory model that will support the sector move to an optimistic view of aged care where the Government’s commitment to high quality care is embraced and older people feel safe and empowered when receiving aged care services.

This means we want to create a culture where providers feel secure in working with a regulator to improve quality and innovate. We want providers delivering high quality care not because we are making them but because that is what we all agree older people deserve. We are talking about a cultural shift, a change in outlook and behaviour. The new model has been designed to shift the culture by transforming the way the system interacts. It places more emphasis on working together with providers in a positive, proactive way rather than through a system of punitive actions. It requires us all to build stronger working relationships, deeper trust and embrace more transparency.

Policymakers and academics refer to this as relational regulation or relationship‑based regulation. Don’t feel like you have to memorise this term. I understand that not everyone is into regulation theory but it is helpful to know that this approach is based on evidence of what works. It aims to create a more responsive and collaborative environment for providers to work with the regulator and the Department so that the quality of care offered to older people is more assured from the outset rather than only working together to fix issues after the horse has bolted so to speak, which is not good enough for our older people.

With relational regulation sometimes I think it’s easier to understand when I explain what it is not. It is not tick a box or punitive regulation. We want to avoid relying on the appearance of toughness through the creation of rules but rather focus on working together effectively to solve the actual problems not just their symptoms. But don’t think that because we want to promote trust and lived commitment to high quality care that we are in any way naïve. We know that we need to back up these good intentions with a powerful regulator and the new model will do this too. We are striving for a fundamental change in outlook and behaviour across the sector. I will explain how we propose to do this in the following slides.

The proposed changes to drive cultural change and raise the quality of aged care are explained in Consultation Paper 2. Due to the broad coverage and complexities of the issues we use regulatory safeguards to group regulatory functions and tools to achieve the objectives as shown in the slide here. In simple terms what we mean here is that through the new model first and foremost we want to support providers to do the right thing so older people receive high quality care. We will allow only providers who are suitable, capable, viable and have propriety to enter and remain in the sector. We will make sure that providers comply with their obligations to deliver high quality care and we will monitor all providers to make sure that they do the right thing. We will deter poor providers’ performance, proactively identify and address issues and hold providers accountable if they don’t do the right thing. I will talk about some of the key changes we are proposing. For details please read the paper.

Universal provider registration and re-registration. Under the current approved provider arrangement approved provider status is ongoing and provider suitability is not tested regularly. Under the new model all providers delivering Commonwealth subsidised aged care services will need to register to enter the sector and re-register before the registration lapses to stay operating in the sector. The standard registration period for all providers is proposed to be three years. This is to improve the protection of older people and ensure continuing suitability of providers. Subject to the progress of in-home care reforms non-corporations, for example sole traders and partnerships, will be allowed to register to deliver in-home care services. This will expand older people’s choice and improve sector sustainability. Currently these providers are not eligible to be approved providers.

Proposed registration categories. We propose six registration categories. Providers will be able to register into one or more categories and deliver a subset of all the service types within each category – deliver all or a subset of the service types within each category. This flexibility will help providers deliver services in areas of their expertise. Here are the six registration categories that we are proposing. For details including the rationale for each category please refer to the Becoming a Provider chapter of the paper. The registration categories group aged care services based on common characteristics, service risk and provider obligations to address the risks. Requiring providers to register into categories as opposed to service types seeks to streamline the registration process for providers and the regulator.

Registration will be streamlined as much as possible rather than cumbersome and inefficient.

It will consolidate requirements for those who register into multiple categories, recognise registration status, accreditation and compliance reports issued by other regulators to the extent possible and without creating any new risks for older people. Registration and registration categories will provide transparency to older people and others. It enables people to know which providers operate in the sector and what services they’re registered to provide. This information will help older people make informed choices. Older people will be able to access services that they need from providers of their choice so long as the provider is registered to deal with the relevant service or services. They can have confidence that any registered provider has been appropriately assessed by the regulator.

Clear, targeted and streamlined provider obligations. The new model will impose clear, targeted, ongoing obligations on providers to manage different risks. Over 300 provider responsibilities currently specified across multiple pieces of legislation will be replaced by a set of streamlined provider obligations that focus on safety and quality outcomes for older people. This approach will enhance the protection of older people and the delivery of high quality care without adding unnecessary regulatory burden on providers. It will also improve transparency for both older people and providers as the obligations will be easier to understand.

The image on the slide shows the proposed obligation architecture and is also in Consultation Paper 2 and its summary. There will be obligations that apply to all providers such as a statement of rights. Registered providers will be expected to provide aged care services in a manner consistent with these rights. There will also be overarching obligations, for example registered providers must comply with all conditions of registration and cooperate with persons exercising powers under the new Act. There will also be other obligations that are applied to registration called conditions of registration. They are core conditions of registration that apply to all providers, for example compliance with the Code of Conduct for aged care, workforce and worker registration requirements. Category specific conditions of registration, for example provider governance and the strengthened quality standards will apply to certain categories, and provider specific conditions of registration which are determined by the regulator to manage risks associated with specific providers.

The obligations seek to manage risk and will be specific and proportionate to the risks being addressed. This is to replace the current one size fits all approach. The application of obligations and the evidence or documents required may differ based on the registration category and other factors such as the type of entity they are and the setting in which they operate. Targeted and risk proportionate obligations will improve the ability of the regulator and the Department to prevent, detect and correct risk and poor provider performance. It will also ensure that providers will not be burdened by unnecessary administrative tasks so that they can focus their resources into providing direct care to older people.

For details please refer to the Responsibilities of a Provider chapter of the paper.

Information is power, people say. Under the new model there will be more detailed, easy to understand information for older people and their representatives. The information will help them understand their rights, expected standards of care, aged care services available to them, feedback and complaints handling mechanisms and providers that they wish to engage. It will help them make informed decisions and hold providers accountable. For example there will be a new public register that publishes information about all providers that are registered to provide Commonwealth subsidised aged care services. Older people and their representatives will be able to look up the public register to see key information about registered providers such as who they are, their location, the type of services they are registered to deliver and registration conditions and sanctions that apply to them. For details please refer to Supporting Quality Care chapter of the paper.

It is in everyone’s interest that our providers do the right thing and do well in what they do. We want to support them to do that. After all high quality care and the continuity of care depend on provider capability to deliver. As part of building provider capability there will be improved education engagement for providers. This will help providers understand older people’s rights, their obligations under the new Act and how providers can learn from each other such as through communities of practice. Audits against the quality standards are a key element in the delivery of quality care. The current pass or fail approach to these audits will be replaced with graded assessments. This is to incentivise providers to continuously improve and strive for excellence. Audits will be constructive rather than punitive. The outcomes of audits will support providers to share their plans for continuous improvement with older people and their representatives and work with older people and quality advisory bodies to implement and sustain these improvements over time. This will build provider capability, improve transparency and build relationships and confidence in the sector. Relationship-based regulation that I mentioned before will play a big part in making this happen. For details please refer to Supporting Quality Care chapter of the paper.

Enhanced complaints and feedback mechanisms. We know that organisations and systems that welcome complaints and learn from them are strong, healthy organisations and continuously improve. We want to adopt this approach for aged care. We want to build a culture that values feedback and complaints. We want to encourage older people and others to provide feedback to raise complaints either to their provider or the regulator or both. We want them to feel empowered, heard and acknowledged. If older people, workers, providers and the regulator build trusting relationships as I’ve mentioned then people will be more likely to raise their complaints. The regulator has a lot of powers but the regulator cannot be everywhere. It is the people receiving care, workers and volunteers that know what is happening on the ground. Their eyes and ears are critical. Therefore under the new model there will be pathways that are safe, accessible and culturally appropriate for people to provide feedback and raise complaints. There will also be new powers to protect complainants from reprisal.

In handling complaints providers will be required to manage complaints in an open and transparent way to ensure everyone affected is involved in the resolution and kept up to date about the status of any investigation or outcomes, and respond, apologise and address feedback by making sustainable and meaningful changes to how services are delivered in the future. Policymakers call this process restorative justice which will be introduced under the new model. My colleague Mel Metz will also talk about the whistle-blower protections which will enhance feedback and complaints mechanisms further.

I can’t stress enough the importance of feedback and complaints. The information will help the regulator and the Department identify and address issues on the ground promptly. They can be issues at an individual provider level as well as systemic issues across the sector. Whatever the problem is we want to nip it in the bud. For details please refer to Holding Providers Accountable chapter of the paper.

A strong regulator. We plan to drive this change by regulating in a practical and fair way with trust but also vigilance. As I said earlier don’t think that because we want to promote a fair and trusting system that we are in any way naïve. We know that we need to back up these good intentions with a powerful regulator. That is why the new model would give the aged care regulator powers to act decisively and apply tough measures including civil and criminal penalties when a provider is dismissively defiant, engages in game playing or risks harm to older people. The new model will give the regulator and the Department stronger investigative and enforcement powers. The regulator’s powers will include the power to request documents and information, undertake site visits, interview older people, workers and others at any time to determine whether a provider and workers are meeting their registration conditions and older people’s rights are being upheld. It is expected that the regulator will also have the power to enter and remain in a premise at any time without warrant or consent to exercise their monitoring and investigative powers.

The new model will have a stronger focus on connecting information and intelligence to prevent, detect, correct risk and poor provider performance. All providers will be monitored by the regulator and the Department through risk-based monitoring. Information will be gathered from various sources and mechanisms including through information sharing with other regulators. Informed by data and regulatory intelligence the regulator and the Department will form a holistic view of risk and respond before it results in poor care or harm to older people. For details please refer to the Holding Providers Accountable chapter of the paper.

Transitioning to the new model. The new model will be written into the new Act. It is proposed there will be a single go live date with the new model. That is it will commence when the new Act commences. The current regulatory framework will cease when the new model commences. This way we won’t need to operate two legislative schemes in parallel. Proposed arrangements will ensure continuity of care for older people and minimise impacts on providers. Existing providers of Commonwealth funded aged care programs including grant funded providers under the current scheme will be considered suitable and registered into registration categories before go live.

So myth busters. To allow more time for the live Q&A session we are going to bust two of the biggest misconceptions about the new model. After Mel presents we will be able to answer your questions. So myth number one. The new model will deregulate aged care. Deregulation can be interpreted as reducing regulation or making it more lenient. If that’s the case it’s definitely not what we do here. Deregulation will not meet the intent of the Royal Commission’s recommendations or best practice recommendation principles or ensure safe and quality care for older people. First and foremost we owe it to older people and our society that older people receive the high quality care that they deserve which won’t happen without strong, agile and responsive regulation.

I mentioned about streamlining registration requirements and provider obligations under the new model. I also mentioned about risk proportionate regulation. They are not deregulation. They are about more effective and efficient regulation.

Myth number two. The new model will create more regulatory burden and administrative tasks. It’s not worth staying in the sector. That’s not true. As I mentioned before the new model will apply regulation that is proportionate to risks being addressed. In other words it’s the right touch approach to regulation so that no one will be over or under regulated. Processes will be streamlined to minimise burden on providers for example through online registration and adopting the principle of collect once, use multiple times in terms of information collection and management.

So how to provide feedback. As I mentioned before please provide feedback on Consultation Paper Number 2 by 23rd of June and participate in the upcoming workshops. Visit the Aged Care Engagement Hub for details. Your feedback will inform refinement of the model for consideration by Government and inform drafting of the new Act.

Thank you for your participation. Please send your questions and I will address them during the Q&A session. I will now hand over to Mel Metz to share an update on the new Aged Care Act. Over to you Mel.

Mel Metz:

[Visual of slide with text saying, ‘Update on Legislative Reform’, ‘Mel Metz’, ‘Assistant Secretary, Legislative Reform Branch’, ‘1. Proposed definition for “high-quality care” under the new Act’, ‘2. Proposed arrangements for whistle-blower protections under the new Act’]

Thank you Caroline. I’m Mel Metz, the Assistant Secretary of the Legislative Reform Branch. I have responsibility for the aged care legislative reform program which includes delivery of the new Aged Care Act. The Legislative Reform Branch is continuing to consult with relevant groups on key components of the proposed new Aged Care Act and we’re really interested in hearing your views.

Today I’m going to cover two topics. So first of all, the proposed definition of high quality care under the new Act and secondly the proposed arrangements for protecting whistle-blowers.

As recommended by the Royal Commission we intend to define high quality care in the new Act. The draft definition which appears on the slide is also included in the paper on the new regulatory model that has recently been released. The aim is to ensure that the concept of high quality care is central to the new regulatory model. The focus of strong enforcement measures will be on addressing activities that put older people at risk or cause them actual harm. More minor issues will be addressed with other regulatory tools like education and engagement.

The current draft definition draws on the definition that was suggested by the Royal Commission with some amendments following our initial consultation work. Our draft definition defines high quality care as the delivery of aged care services to a person in a manner that prioritises the delivery of services with compassion and respect for the individuality, self-determination and dignity of a person accessing care and their quality of life, responding to the person’s expressed personal needs, aspirations and their preferences regarding the manner by which services are delivered to them, facilitating regular clinical reviews to ensure that services delivered continue to reflect individual needs and supporting the person to enhance their physical and cognitive capacities and mental health wherever possible.

We welcome further feedback on this definition, taking into account that the aim is for this to apply across all Commonwealth funded aged care services delivered under the new Act. Definition is important as consistent with the Royal Commission’s vision to aim higher and not just focus on minimum standards our aim is for the new Act to deliver the foundations of an aged care system where there’s no place for substandard or low quality care, all registered providers deliver care as required under the new robust legislative framework and as the system matures high quality care becomes the norm.

The aim is to encourage registered providers to do more than just the minimum and it’s also intended to provide a focus for the compliance and enforcement work of the aged care regulator. We want the new aged care system to promote and grow high quality care throughout the sector. The definition of high quality care taken in isolation will not be the answer to lifting the overall standards of aged care services and ensuring the needs of older people are at the forefront of care delivery. In fact, no single measure or legislative reform alone would achieve this outcome.

As the slide shows we instead need an Act which provides for an integrated suite of measures and ongoing effective governance and system stewardship. The new system needs to be constructed and managed to ensure registered providers are funded, supported and incentivised to grow their services. It will need to balance the diverse needs of older people and the challenges facing the sector particularly in remote and regional Australia. The regulator also needs to be able to use the most appropriate tools available to facilitate addressing any risks to older people immediately and with registered providers returning to compliance as soon as possible.

This slide highlights some of the other features of the new Act that will ensure the concept of high quality care is central to the new framework. For example the proposed new statement of rights which we will be consulting on separately, a new national provider registration scheme which Caroline spoke about earlier, as well as revised robust obligations on all registered providers, a new regulatory model that includes enhanced enforcement powers to take strong action where substandard care is delivered but also allows for early proactive regulation before situations deteriorate and people are actually harmed and revised complaints processes.

Another aspect of the regulatory framework is ensuring there are appropriate protections available for people who disclose information about an incident or conduct that contravenes aged care legislation. The next few slides will set out an overview of our proposed approach to protecting those whistle-blowers.

So, the current arrangements are that the Aged Care Act only protects those who disclose information in relation to what we call reportable incidents under the Serious Incident Response Scheme. The proposed new approach acknowledges the Royal Commission’s concerns about the limited protections in the current Aged Care Act. The Royal Commission was concerned that aged care workers and others may be reluctant to raise concerns due to a fear of retribution. So we propose broadening the current provisions and aligning the new Aged Care Act with other frameworks such as the NDIS and the Corporations Act which have established whistle‑blower arrangements.

We’re proposing that a disclosure could be made by a broad range of people including employees of providers, people who spend time in aged care facilities such as contractors and volunteers, recipients of care and those close to the recipients of care such as carers, family members and advocates. Those people will be able to tell officials about their concerns and those people would include staff of the Commission or the Department, workers of aged care providers, volunteers, police officers and others who we might specify in the legislation.

We are considering whether disclosures should be able to be made anonymously or whether the discloser will have to provide their name prior to making the disclosure. We would be happy to hear your views about this. The challenge is that if a disclosure is made anonymously, it becomes difficult to protect that person from retribution and difficult to investigate the issue. However, we do recognise that there are some benefits to allowing disclosures to be made anonymously.

There would be a requirement that the person has reasonable grounds to suspect that an aged care provider, aged care worker, volunteer or contractor has or may have contravened aged care legislation. And finally, the disclosure must also be made in good faith. We intend to make sure that people feel empowered to disclose information if they think that there might be a breach of legislation without fear of there being repercussions. This is really important for protecting older people and we hope that it will lead to earlier identification of concerns before a serious incident occurs.

We also propose to make it an obligation for aged care providers to have their own whistle‑blower policy and we’ve heard in other forums that many providers already have these kinds of policies in place.

When a person makes a qualifying disclosure, they will be protected from a range of consequences that might otherwise follow making that disclosure including civil, criminal and administrative liability, contractual or other remedies. This means that if a person makes a qualifying disclosure their employer would be unable to fire them or sue them for breach of contract or confidentiality. We also propose to maintain the protection against victimisation, meaning that it would be a civil offence to engage in any conduct that causes detriment or even threatens to cause detriment to a person who’s made a disclosure because of that disclosure or because of another person’s disclosure.

We also propose to maintain the existing obligations of providers to ensure staff members and other individuals are not victimised for any qualifying disclosures and that their identities should be kept confidential. This would include where a family member has made a disclosure to a staff member. In such a case it would be the responsibility of the care provider to ensure the staff member keeps the discloser’s identity confidential.

We also propose similar to the Corporations Act that it would be an offence to disclose a whistle‑blower’s identity or any information that might lead to their identification where they have made a disclosure. However, in order for information to be dealt with and investigated appropriately it will be necessary to include some exceptions to that obligation. Those exceptions include the Commission, the Department or any other body with a legislated function concerning the investigation of information provided by the discloser to the extent necessary for those organisations to perform their functions, one of the provider’s key personnel, a legal practitioner for the purpose of obtaining legal advice, where the disclosure is necessary to lessen or prevent a serious threat to the safety, health or wellbeing of an aged care consumer, with express or implied consent of the discloser or to a person or body that we might prescribe in the Rules.

Thank you very much for your time today. I hope that’s helped inform you of how these topics are intended to operate under the new Act. Very happy to hear your views on that. It’s very early work. And I’m also happy to respond to any questions that you might have about the material presented today via the Q&A function. You can also send my team an email at the address that’s on the slide.

[Visual of slide with text saying ‘Legislative Reform Branch’, ‘agedcarelegislativereform@health.gov.au’]

So, thank you very much. I’ll hand over to Caroline who I think is running the Q&A session.

Caroline Turnour:

That’s right. Thanks Mel. Excellent. So, we’ve got questions and answers now. So, let’s see what we’ve got.

Q:        Please confirm that the approved provider will no longer exist. There are currently many regulations and other requirements that are only applicable to approved providers, eg Code of Conduct. So just clarifying that we will become registered providers with some universal requirements.

So, under the new model all providers who are delivering Commonwealth subsidised aged care services will need to become a registered provider. And as you correctly point out there will be different obligations depending on the categories in which you have registered to provide services.

So, the next question.

Q:        When will registration commence for current providers?

Okay. So, the new model will come into existence when the new Act comes into existence. We are working towards the middle of next year. But what we want to do is we want to make sure that the transition is as seamless as possible. So if you’re a current provider the transition arrangements will be that we will have a process of seeking information from you around what services you do provide and what categories you want to continue to provide services in. We will then deem those providers into the new categories and deem them to be registered in those categories. So, we want the transition from the new model to the old model to be as seamless as possible and that’s the approach we’re recommending. And we’ll be working with you as we finalise the model and move to the new arrangements.

So, the next question.

So, the new Aged Care Act. This might be for you Mel.

Q:        Will people with disability be included in the special needs group or is it a separate group?

Mel Metz:

Thanks Caroline. So, the new Act is going to have – it’s going to cover funding for all aged care services and there will be an assessment process where the individual needs of older people are assessed via a single assessment framework. So, if somebody has a disability that will be considered through that assessment process. Having said that the new Act is not going to replace other support systems that are already in place for people with disabilities such as the NDIS or duplicate the provision of any other Commonwealth funded services. So, the needs of people with disability will be considered through the assessment process.

Caroline Turnour:

I might get you to answer that one that is about – it’s just moved. There we go.

Q:        Can you please review roles of representatives specifically when a person is not able to consent or comprehend information?

Mel Metz:

Yeah. That’s a really good question. And I did cover off on this topic in a previous webinar where I spoke about the proposed new nominee arrangements under the new Act. So consistent with arrangements under several other Commonwealth schemes we are proposing to have Commonwealth level nominees specified in the new Act and there would be two types of nominees. So we’ve taken inspiration or really guidance from the recommendations of the Australian Law Reform Commission which were supported by the Royal Commission. There weren’t any direct recommendations around that but the Royal Commission did express support for the model. And we’re proposing to call those two types of nominees supporters and representatives.

So representatives would be authorised to take any action or make any decision that a person receiving aged care would be able to make themselves but they would only be able to exercise those powers as a last resort. And they can be appointed in circumstances where a person receiving aged care doesn’t have capacity or doesn’t always have capacity to make decisions on their own or where the person doesn’t want to make decisions. And a person can also appoint one of those representatives in advance in case they have a decline in their capacity later. So what the intention is is that a person won’t forfeit their decision making ability when a representative is appointed. The representative will only be able to make decisions or undertake acts on behalf of the person as a last resort and in accordance with supported decision making principles which we will set out in subordinate legislation. Thanks Caroline.

Caroline Turnour:

Excellent. Thanks. So I just understand we’ve had a lot of questions about the home care arrangements and reforms which is a very important area that I imagine a lot of people are engaged with from the questions. In terms of that topic though I encourage you to register for the support at home specific webinar which will be on the 18th of May. So you can register at the Aged Care Engagement Hub which I think we’ve got a topic there.

There’s also been some questions – I might just go to the ones on the screen for now.

Q:        Do you propose to provide oversight to sole traders that will likely pop up in the domestic assistance and social support groups? The registration conditions for these groups seem fairly light, paper-based for having a high level of access to older adults.

That’s a great question. So in this model everybody who is providing services will first and foremost need to register to provide those services. They’ll register into what we’re suggesting is there are six different categories, and each category has been determined based on an assessment of the type of service, the location of the service and the risks associated with those services.

In terms of domestic assistance there’s questions around personal care and whether they should be in category four or category three. Category four there is a greater oversight in terms of the quality standards and the audits that are proposed for those types of services. So that’s where we put them at the moment in terms of sole traders and social support. So it depends on the level of risk that we have suggested for each of those different types of services. So the category one, meals and gardening and services like that, we think that if you register you make it clear that you are capable of meeting the obligations that are required to deliver those services and you’ve got the right reporting and complaints in place. We’ve got the monitoring and the assessment to – we think that’s the right regulatory balance. As the risks increase the amount of regulation that the model suggests is there. But in terms of the balance it is a balance because we want to have risk proportionate regulation. If the questioner in particular is concerned that there isn’t sufficient regulatory oversight over the lower categories we’re interested to hear from you. But as I said it’s always a balance as to we want to regulate what matters not just regulate because it makes people feel better. Because often that means we just – we need to focus on what really matters and that’s why we’ve divvied them up into different categories. I hope that answers your question but if you do have concerns please respond through the consultation process.

Q:        Is there a timeframe for the release of the draft Act for consultation, also a timeframe for consultation on the new statement of rights?

I think that one is one for you Mel.

Mel Metz:

It certainly is. So we are working towards having an exposure draft ready for public consultation later this year and that will provide opportunities for everyone to have a say about the draft legislation before it’s introduced into Parliament. We understand that not everyone likes reading legislation as much as I do and it will be a very complex piece of legislation. So we’re going to provide alongside the exposure draft of the Bill explanatory information that sets out what the new legislation will mean for you. And the Engagement Hub is the best place to register to find out more about that.

We have been working very closely with the Council of Elders and the National Aged Care Advisory Council on a proposed statement of rights for the new Act. So that will definitely form part of the exposure draft once that’s released. But we’re also really keen to do some earlier engagement on the statement of rights, so working with the Minister’s Office around what the timing for that might be.

Caroline Turnour:

Thanks Mel. So there’s a question here.

Q:        Regarding category four will you be required to provide all services listed in the category?

You need to register into a category and then there will be obligations depending on the types of services that you provide. So there may be conditions in relation to a particular service. For example we have had a lot of interest in category one in terms of meal services and people suggesting that the nutrition requirements and so on that have been a big part of the delivery of meals in residential services, there should also be some level of regulation in terms of meals there. So obviously if you’re in category one and you’re not delivering meal services then those obligations wouldn’t relate to you. So the obligations will relate to the services that you are delivering, unless they’re an overarching obligation.

Q:        Will the new Aged Care Standards apply to categories one to three?

So in terms of categories one to three again all service providers will need to register into the categories but for registration category one you will not be audited against the standards at entry or re-registeration. However there will be elements of the standards that will still relate to those categories. So again this is about trying to get the right balance between what the risks are associated with delivering those services and ensuring that we’ve got a strong sector as compared to what needs to be demonstrated. So the standards will apply and be audited against in categories four, five and six.

Q:        When do CHSP providers need to register as a provider under the proposed system?

So we will be working with CHSP providers to make sure that they’re registered and part of the new regulatory model before it transitions across to the new system. So we’ll be working as part of the transition process with those providers to make sure that they’re registered into the right categories.

Q:        Does a relationship-based regulatory approach represent a shift from the current regulatory approach or is it intended to codify the current approach?

So I think in terms of comparing the new model with the current approach it’s really a new paradigm. We’re going to be working with the Commission but we’ve got to have a new Aged Care Act. And the new Aged Care Act is going to include so many new elements to it as Mel’s gone through that I don’t think you can just say it is a shift and relationship-based regulation really is going to be supported by the new Act. So I think in terms of the current regulatory approach certainly that is an approach that I think we all recognise as best practice but we need to have an Act that supports that in all its forms and that’s what we’re aiming to do and obviously obligations and a risk proportionate approach which also supports that. So we really are I guess renovating our new Act and the whole regulatory system so that it can work both for older Australians, for the regulator and for providers. So it is an important shift and we want to move to and get all our ducks in a row as they say. So that will be a great reform.

Q:        Would there be a timeframe before the transition from the old to the new system?

So this is a good question. So obviously there’s a lot of reforms happening and people are keen to be able to implement them as much as possible. In terms of the new regulatory model we’re trying and we’re going for the 1st of July 2024. That’s our date that we’re pushing to move to the new model. I think that really when you look at the new model and the consultation paper I think every day that we wait is a day that’s lost because this really does represent a better environment and world order for older Australians in terms of their protections and encouraging their confidence and trust in the system. And I think it’s also something that we really need to try and get in as soon as possible because it will also help providers to be able to focus on what really matters and to really strive for high quality care.

So we do have timeframes. I think we all recognise that across the sector and in the Department and Government but we also recognise that there’s so many opportunities that come with these reforms and we want to bring them in as soon as possible.

So let’s have a look at some new questions.

Q:        Where can we find information for different categories?

So I again encourage you to go to the Consultation Paper which has got information about each of the different categories. If you would like to you can also email us and contact us if you’ve got specific questions about specific categories and the services that you provide. Very happy to respond.

Q:        Can we register against a number of categories?

Absolutely. And I imagine there will be a number of providers who will register against a number of categories. And the great thing is that in terms of the way we’re going to be setting up the obligations and providers it will be much be easier to navigate and understand what the obligations are for each of the different services. And also in assessing the suitability of the provider to deliver those services if you are providing across a number of registered providers we’ll do that as seamlessly as possible. So we’ll look at you holistically rather than this is each category. So I think there are certain benefits to that and we certainly would be expecting a lot of providers to register across the different categories.

So there’s a question here for you Mel.

Q:        Will the new statement of rights focus on human rights or consumer rights?

Mel Metz:

Thanks to the person who submitted that question. So it is a really good question. The focus will be on human rights but there may be some elements of consumer rights covered off. Having said that consumer law is dealt with elsewhere and we’re not going to try and replicate that in the new Aged Care Act. And just to provide sort of a bit more detail to that answer we think that including a statement of rights in the new Act is really important because it will mean that older Australians and their needs are placed and remain at the centre of the new Aged Care system. And it’s really intended to facilitate everyone including registered providers operating within the framework using human rights and principles to assist with interpretation of the legislation and guiding their actions. So really intended to drive a cultural shift.

We do want that statement of rights to be more than symbolic though. So as a result we’re taking a broader approach in developing the Bill. So rights will be incorporated into the framework in a way that have some practical impact for older people and they’ll be operationalised through other provisions in the Act. So to provide an example the new single entry point and assessment arrangements and new representative arrangements and supported decision making principles that I spoke about. And there will also be pathways in the Act for people to seek to have their rights upheld. And Caroline spoke in her presentation around complaints mechanisms. So a complaint could be made. There could be early intervention and restorative justice outcomes sought by the Aged Care Quality and Safety Commission as well as a more formal investigation and enforcement pathway where someone makes a complaint around the breach of their rights.

So really looking to have the statement of rights front and centre in the legislation and real pathways to ensure that those rights are meaningful.

Caroline Turnour:

Thank you Mel. So we are also receiving a number of questions relating to accreditation and audits in the new model. We’re currently testing the application of standards to the registration categories and service types within them via a pilot which is currently being undertaken by the Aged Care Quality and Safety Commission. And we’ll continue to advise how the registration and audit process intersects including information provided by the consultation process. So we’re in the process of doing that pilot so that we can understand how in terms of implementing the new model what the issues are and how we can make sure that they’re as seamless as possible.

So there’s a question here about whether subcontractors will be regulated. So subcontractors will not be required to be registered however all providers delivering Commonwealth subsidised aged care will need to register. So they will be regulated through the registered service providers responsible – so if you’re a registered provider you will be responsible for ensuring the subcontractor complies with the relevant obligations that ensure the quality and safety of all services. In the future subcontractors may wish to apply to become registered providers in their own right. But we want to hear from you as to whether we have the balance right so please engage in the consultation process and send us your views.

I think there’s also a question about fees. So just so you know in terms of the cost too we’re designing a regulatory model that first and foremost as I’ve said is about rebuilding trust and confidence in the aged care sector. And as we discussed regulation is critical to this and we’ll make sure that it is designed to manage risks rather than create unnecessary rules. That is why I spoke so much about relational regulation. We are doing further work around fees and costs and we’ll be consulting further on that. But I can say we are streamlining the obligations so that we are efficient and fit for purpose. At the moment there are over 300 obligations on the sector which are hard to navigate and understand and so I can assure you that the new model will be easier to navigate and comply with.

So I think in that respect we may have come to the end of the webinar. So thank you Mel for answering those questions and thank you everyone for sending those questions through and participating in today’s webinar. As mentioned before we would welcome any further feedback on the Consultation Paper Number 2 by the 23rd of June. Visit the Aged Care Engagement Hub for details. When the webinar finishes a short survey will pop up on your browser. It takes around one minute to answer the three questions. And we would appreciate it if you could take a moment to help us improve our webinars.

Thank you for all your time.

Just one more question because I’ve got another minute.

Q:        What will be the process for moving from one category to another?

I don’t want to lose this opportunity. So, if you registered into a couple of categories and you want to expand you will then just need to go through a process of expanding your registration. So it won’t be a difficult process. And then you’ll just have to demonstrate that you’ve got the right capabilities to deliver services in that category.

So I think that’s the last question that’s popped up for me so now I can – and I’ve got one more minute to go. I feel like I’m a radio producer. When the webinar finishes, I’ve mentioned the short survey. So that’s I think a wrap up. So thank you all for your time. Very much appreciate all the questions and please do provide us with your feedback. So thank you again.

Mel Metz:

Thanks everyone.

[Closing visual of slide with text saying ‘Australian Government with Crest (logo)’, ‘Department of Health and Aged Care’, ‘Thank you’, ‘For more information, please contact the Department of Health and Aged Care:’, ‘Email agedcareregmodel@health.gov.au’ with image of QR code, ‘Aged Care Engagement Hub’ with image of QR Code’]

[End of Transcript]

 

Presentation slides

Presenters

  • Caroline Turnour, Assistant Secretary – Harmonisation and Regulatory Strategy Branch
  • Mel Metz, Assistant Secretary – Legislative Reform Branch

About the webinar

The new regulatory model proposes a number of changes to how the sector works, including:

  • how providers enter the sector
  • the obligations that a provider must meet
  • strengthened monitoring and enforcement powers for the Regulator.

You can read the second consultation paper and/or the summary paper. They describe the new model.

To learn more about the new model or provide feedback on the consultation paper, visit the Aged Care Engagement Hub.

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