Draft new Aged Care Act consultation – Q&A panel discussion

This webinar , held on 18 January 2024, was an interactive discussion about the final draft of the new Aged Care Act which was available for consultation until 8 March 2024.

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00:59:47

[Opening visual of slide with text saying ‘Australian Government with Crest (logo)’, ‘Department of Health and Aged Care’, ‘Draft New Aged Care Act’, ‘Question and Answer Session’, ‘Thursday 18 January 2024’, ‘Chair:’, ‘Amy Laffan, First Assistant Secretary, Quality and Assurance Division, Aged Care Group’, ‘Presenters:’, ‘Mel Metz, Assistant Secretary, Legislative Reform Branch’, ‘Caroline Turnour, Assistant Secretary, Harmonisation and Regulatory Strategy Branch’, ‘Janet Anderson, ‘Aged Care Quality and Safety Commissioner’]

[The visuals during this webinar are of each speaker presenting in turn via video, with Auslan interpreter signing on screen]

Amy Laffan:

Good afternoon and thank you for tuning into today’s webinar about the new Aged Care Act. I believe we have over 2,600 people registered to join us today. A fantastic effort given how busy you all are so I thank you again for tuning in.

My name is Amy Laffan and I’m the First Assistant Secretary of the Quality and Assurance Division in the Aged Care Group of the Department of Health and Aged Care. Today I’m joined by Mel Metz, the Assistant Secretary of the Legislative Reform Branch, Caroline Turnour, the Assistant Secretary, Harmonisation and Regulatory Strategy Branch, and Commissioner Janet Anderson, the Aged Care Quality and Safety Commissioner.

I’d like to begin by acknowledging the traditional custodians of the lands on which we are virtually meeting today. We are based in Canberra on the lands of the Ngunnawal people. We recognise any other people or families with connection to the lands of the ACT region. I wish to acknowledge and respect the continuing culture and the contribution they make to the life of this city and region. I would also like to acknowledge any other Aboriginal and Torres Strait Islander people who may be attending today’s event.

Before we start I’d like to let you know that we are recording this webinar so it can be shared for those who are unable to join us today. It will be available on the Department’s website in the coming days. Given this website will be wholly focused on Q&As slides will not be made available.

So today’s webinar is part of our public consultation activities about the Exposure Draft of the Bill of the new Aged Care Act. Our consultations commenced on the 14th of December 2023. If you haven’t already done so I encourage you to visit our Consultation page where you can access a copy of the Exposure Draft, our Consultation Papers and supporting resources.

Throughout today’s webinar you can lodge questions in the Slido box on the right hand side of your screen. If you can’t see Slido you can scan the QR code on the slide to open Slido on your phone. We will attempt to respond to as many questions as possible live but all of your questions will be used to develop frequently asked questions which we plan to publish on our website. Some of the questions that were submitted during registration will also be answered during this Q&A session.

So I’ll just provide you now with a little bit more information about consultation on the Exposure Draft of the new Act. There are a range of ways you can have your say including completing a survey, lodging a submission, sending us an email or letter or registering to attend one of our webinars which are scheduled in capital cities and regional locations across Australia. The registration page for these workshops is now open. These workshops are a great way to have your say on the new Aged Care Act. They are free to attend. They will run for around four hours and are a great opportunity to connect with others interested in aged care reforms. Click on the ‘Upcoming workshops’ link on our Consultation page to register.

The main purpose of today is to provide you with an opportunity to have your questions about the new Aged Care Act answered. To ensure we are able to capitalise on the expertise of our panel members today questions promoted for discussion will address the key themes that emerged through the pre-submitted questions and what we have heard people are most concerned about. Our moderators will aim to ensure we can address a mix of questions but we will focus on the Exposure Draft of the Bill, readiness and transition support, the regulatory framework and the regulatory approach.

Now to give our moderators a little time to scan and promote the questions in our chat I’ll start our Q&A off by drawing on a couple of questions we received through our registration process. We have received quite a few questions wanting to know in simple terms what is the primary differences between the existing Aged Care legislation and the new Aged Care Act, particularly what the new Act will mean for older people, for aged care workers and aged care providers. So over to you Mel.

Mel Metz:

Thanks very much Amy. I think many of you have probably heard me say before that the current Aged Care Act is structured around providers and how to fund them, not about the people accessing services and what they need. So the new Act is focused on older people other than aged care providers and it’s going to clearly set out the obligations of providers and legislate requirements that protect the rights of older people to safe quality care.

So some of the key new aspects of the Act are it will outline the rights of older people who are accessing aged care services and it’s going to provide pathways for resolution when rights are breached. It will provide a single system entry point with very clear eligibility requirements for aged care that are very transparent for everyone. It’s going to have a fair, culturally safe single assessment framework to assess people’s needs. Residential aged care places are going to be allocated directly to individuals as opposed to what happens at the moment with places being allocated to providers. There are going to be new whistleblower and anti-victimisation protections. There’s going to be greater transparency enabled about aged care providers. And we’re also looking to introduce a new risk-based regulatory model which is designed to increase provider accountability and strengthen the enforcement powers of the Aged Care Quality and Safety Commission.

So this includes some really important new features like duties on providers and the people responsible for running them, the ability for the Commission, staff of the Commission to enter residential aged care premises without warrant or consent where people are at risk, and strengthened quality standards. And that’s just to name a few. It’s really not often that we’re able to completely redo an Act in this way so on top of introducing some major aged care reforms that I’ve just spoken about we see this as an opportunity to really improve on the existing legislation so that people and providers are much more easily able to understand, implement and operationalise the laws about aged care. Thanks Amy.

Amy Laffan:

Thanks Mel. Janet can you tell us how the Commission is helping the sector to prepare for these changes?

Janet Anderson:

Yes. I’d be pleased to Amy. And hello everyone. It’s a really important question and because it’s been asked of me as the regulator clearly people are interested in understanding how they can get things right, how they can be assured that they’re going to be ready to be assessed against all aspects of the new Act. So my first answer is that it’s not just about what the Commission is going to be assisting the sector to understand but also what we do in partnership with the Department. Because the Department has a really key role here too in communicating expectations and obligations.

But let me focus my answer on what we the regulator are going to do and it’s a fair bit. What we know more than anything is that providers and people receiving aged care are very keen to understand what the Act requires of them and offers them. So we want older Australians to know what they should expect from their aged care experience and how we can help them if things don’t go well, and we also want providers to be crystal clear about their obligations, what we expect to see in their delivery of care, how we’ll assess performance and how we will approach regulation.

Now there’s a fair bit of detail that still needs to be settled but what I am going to share with you briefly is the work we propose to do with the sector, users of care and also providers in relation to the strengthened quality standards. And this is probably a fairly good exemplar of what we propose to do more generally in terms of making information available. We ran a pilot program which started in 2022 in relation to the strengthened standards to see whether they worked, whether they were robust and adequate in and of themselves but also the way in which we would audit against them.

Now the very start of this process when the strengthened standards were first put out as an early draft was to map the difference between the current standards and the proposed strengthened standards. And a number of you who represent providers would know that there was published some time back a gap analysis. That gap analysis is being updated now because we now have the next to final if not final version of the strengthened standards. So we’re looking at the differences between the current standards and the proposed standards and that will be published fairly shortly. And I think that’s a go to document for those of you delivering care.

The other really important thing we’re doing is putting out a comprehensive package of content which is designed specifically for providers to assist you to understand what you need to do to meet the standards and how we will assess conformance against the standards. And we’ve not put this together by ourselves. We have again consulted with the Department and particularly with providers also and also the Australian Commission on Safety and Quality in Healthcare.

Now this package has five elements. I’ll list them very briefly. There will be draft guidance for each of the seven strengthened standards. So that will help providers to understand what their obligations are. We’re going to be putting out an evidence mapping framework so that providers can understand what sort of evidence we’re going to be looking for to identify or clarify or assess the level of conformance with the standards. We will be putting out our audit methodology which will outline the process we’re going to use to assess conformance with the standards. We will also be providing an audit preparation tool for providers which is actually a continuous improvement tool which will assist providers to assess your own performance before we even come to your service. And finally there is a request for information template that we will use to ask providers to complete at the beginning of the audit process so that there will be information we will seek from providers in advance of an audit being undertaken that they will be expected to submit before we get there.

Now this is a public consultation process so this package of material we are putting out in order to receive commentary, receive feedback, receive improvement suggestions from providers, from people using aged care, from other stakeholders, to make sure that it’s practical and fit for purpose. And I’d also add that we are proposing to design and deliver for the sector an online interactive tool which providers can jump on to and use to curate the information that’s going to be most meaningful for them.

Final thing I’ll say Amy goes to some targeting of consultation that we are going to be running alongside the general issue of this package. We are very aware that the sector falls into different segments. We have large, medium, small providers. We have metropolitan, regional, remote, very remote providers. We have providers specialising in the care of people from culturally and linguistically diverse backgrounds or people with particular vulnerabilities such as homeless people or people with mental health issues and so on.

We are going to look to provide discreet opportunities to hear the voices of those different provider categories to make sure that our guidance material and all the other surrounding content is fit for purpose and doing the job that we expect to do. So standby. Keep an eye on our website and if you don’t hear what the particular consultation is that might relate to you contact us and ask us about it. Thanks Amy.

Amy Laffan:

Great. Thanks Janet. One of our pre-submitted questions. I believe this one’s for you Caroline.

Q:        In the current system the process to become an approved provider is onerous and there is no guarantee of success. Will the proposed registration process be streamlined to allow for new entrants into the system and to improve transparency of decision making?

Caroline Turnour:

Thank you Amy and thank you for the question. Yes. Our goal is to make the registration process as streamlined as possible. The new Aged Care Act enables aged care regulation to move from a one size fits all approach to approved providers and that’s why we’ve created registration categories. So the registration and registration process that supports it is based on the level of risk associated with the type of care that the providers wish to deliver. This is what we mean by risk proportionate approach. The aim is to make it less onerous for providers of lower risk services to enter the market. For example applicants wanting to register in provider registration categories 1 to 3, transport, meals and nutrition, home modification, basic care management, will need to make declarations in relation to meeting the evidentiary requirements of these registration categories.

The providers seeking to deliver services that are considered higher risk, that is services listed in categories 4 to 6, will need to provide more comprehensive evidence to support their application. This includes demonstrating they’re able to comply with the relevant quality standards as subject to the conformance audit. And Janet just referred to this earlier. This will hopefully increase the supply of aged care services giving older Australians more choice in who delivers their care.

And while I’ve got the floor I might just add to that because there was a pre-submitted question about providers who deliver services across multiple programs and how they will be looked after, because that’s also about streamlining the process. So where there are some providers who deliver services across multiple program types, CHSP and home care, the services delivered under each of these programs will inform the registration categories that will apply and they’ll be able to be a single registered provider. Providers delivering across multiple categories will have a consolidated set of obligations outlined in their certificate of registration. This will ensure providers do not have to provide the same information multiple times and are only registered once. So to be clear you will only need to register once. So hopefully that indicates that we are trying to make it much more streamlined. Thanks Amy.

Amy Laffan:

Thanks Caroline. And just a reminder to everyone out there if you’ve got questions please do send them through. And you’ll start to see more and more appearing on the Slido on the right hand side of your screen. So Janet this one is for you.

Q:        How will you monitor the performance of the service provider and mostly the aged care person?

Janet Anderson:

Okay. This doesn’t vary in the main between the current settings and the new Aged Care Act. Providers will have heard me talk before about the multiple sources of information, data and intelligence that we now gather across the sector on a routine basis, some of which is reported to us through obligations that providers currently have. So just to list a few we see the sector through a risk lens using the complaints that we receive about services. There are Code of Conduct issues that may come to our attention. We receive serious incident notifications. There is of course the routinely reported quality indicator data. We have the data which is reported through the Quarterly Financial Reports. There are the various components of the star ratings including the residents’ experience surveys, care minutes data, 24/7 RN cover, and there are of course the site visits that my quality assessors undertake right the way across the country for residential services and also home care providers and Commonwealth Home Support Program providers.

Now this is a very broad array of information that we take in and that we put against a provider, put against a service in order to understand the dynamic risk profile of that service. And by that means we reach a decision about the level of intensity of engagement we would seek to have with that particular service. And none of this is different under the new Act. So the familiarity that providers have with the current way of working of the Commission should continue through into the new Act.

Under the new Act we will be focusing on regulating at the provider level rather than the service level, which doesn’t mean that we are inattentive to what is happening in particular services, but rather that our engagement will tend to be at the provider level. And so I think that’s an important distinction that will become clearer over time in terms of the nature of the engagement. But it does mean when we are assessing risk by provider and then the services which sit underneath the particular provider that will give us a steer on whether we are paying closer attention, leaning towards that provider because we understand it to be a higher risk provider placing consumers at heightened risk of harm or a lower risk provider.

So we then calibrate or modify the extent, the intensity of our engagement with that provider on the basis of the way we understand risk at a point in time. And that’s fantastic because it means that the high performing providers who have a low risk profile and can demonstrate to us at every turn that they understand risk and are managing risk and are kicking goals basically with the people for whom they provide care, we have less to do with them. We will continue to monitor the data we receive without them but we will not be driven to engage with them intensely because they are managing their own risks satisfactorily and they are delivering the outcomes that their consumers are looking for.

So monitoring settings, the way in which we seek to case manage, which is the language we use, and also any compliance activity we take will be strongly informed by this changeable risk profile that we continue to monitor for every single provider. Thanks Amy.

Amy Laffan:

Thanks. And looking now here’s a question that’s been pre-submitted but upvoted a number of times in Slido. And Mel I think this is for you.

Q:        How will younger persons’ access to Commonwealth funded aged care services feature in the new Act?

Mel Metz:

Thanks Amy. So as I mentioned in my answer to my first question the new Act has really clear eligibility requirements. They’re not clear in the current legislation at all. In fact they don’t feature in the primary legislation currently at all. So what will happen under the proposed new Act is that a delegate will have to decide that a person meets those eligibility requirements before that person can then go on and undertake a needs assessment. And that can occur when a person is either aged 65 or over or they’re aged 50 or over and an Aboriginal or Torres Strait Islander person or homeless or at risk of homelessness.

However if the person is under the age of 65 a delegate will also have to make sure that that person is informed of other services that are available to meet their care needs and make sure that they still want to access aged care once they’re aware of what those other services are. So this is a tightening of the criteria for access to aged care services for younger people. The feedback that we received through our first stage of consultation on the new Act strongly supported changes to the eligibility criteria and really strongly reiterated that residential aged care is not the appropriate place or service for younger people. A number of stakeholders were also pleased to see that we have a lower age limit for Aboriginal or Torres Strait Islander persons reflecting their unique experiences. But we welcome feedback on the eligibility settings particularly as they relate to younger people. So if people have views on how they should be applied this is the time to be providing them to us.

Amy Laffan:

Thanks Mel. And I think that’s a good point. Our answers today are about what’s in the draft of the Bill and obviously we’re welcoming comments on what’s in the draft if you disagree with it or have concerns or would like us to think about something different.

Caroline this one is for you.

Q:        When and why is the Department deeming current aged care providers when the new Aged Care Act goes live?

Caroline Turnour:

Thank you Amy. So first of all the reason why we’re going through a deeming process fundamentally is that we want to make sure the transition is as seamless as possible and to ensure there are no interruptions to service delivery. So all providers currently delivering subsidised aged care services will be deemed across into the new system in time for the commencement of the Act. We’re expecting that in mid-March the Department will engage with the providers around the process of deeming which will include ensuring the correct registration categories will apply to each provider. This process will also include articulating the obligations which will apply to providers and their registration categories.

The exposure draft we are discussing today details the conditions of registration at the high level. Further details of obligations within those conditions will be detailed in the forthcoming rules. The Department will be using a range of communication strategies to ensure providers and the sector have access to the information relevant to the transition process including social media accounts, newsletters, bulletins and the Aged Care Engagement Hub. The new Aged Care Act empowers the Department as system government to undertake this deeming process.

So just to recap, the reason why is that we want the transition to be as seamless as possible and we also want to make sure that there is no interruption to the services. So thanks.

Amy Laffan:

Thanks Caroline. And Mel.

Q:        Will the statement of rights/principles replace the current charter of rights?

Mel Metz:

So the very short answer to that is yes because the charter of rights at the moment is – I think it’s a schedule to one of the principles under the current Aged Care Act. The new statement of rights will be in primary legislation and it’s front and centre of the Act. So if you open it up you’ll find it right up the front so it’s much more prominent. What I will say about the charter of rights is that it’s not disappearing. We drew very heavily on that in developing the statement of rights. So all of the things that are in the charter are incorporated into the statement of rights. They look different. They’re still there but they’re much more prominent. And the additional thing is that we now have pathways for people to make complaints when their rights have been breached which will be very clear under the new system. And providers will have an obligation around making sure that they act in a way that’s consistent with the statement of rights too which is also new. Thanks Amy.

Amy Laffan:

So next question which I also think is for you Mel is quite popular. We’ve got 44 upvotes on this one. And that is:

Q:        How much time will we have to implement the new legislation once it’s approved? Will we get say six months to embed our policies and procedures?

And the one thing I’d just interject is if you have views on that and how much time you need for policies and procedures please do provide us with that feedback as part of your surveys or other consultation feedback. Mel?

Mel Metz:

Thanks Amy. And Janet might have something to say about this too from the implementation perspective. But from the legislative timetable perspective and the timetable we’re working to at the moment the legislation is looking to commence on the 1st of July 2024. So in terms of a six month lead time we’re already nearly a month into that. It’s not very far away. And that will mean that everything starts on the 1st of July this year. Now I know that’s not very far away and we will have a challenge getting legislation through Parliament within that really short timeframe as well. There aren’t that many sitting weeks in the leadup to then between when our consultation period ends and the 1st of July. So it is all very tight.

What we are looking for through the consultation process is views from people on how long they will need to implement the new legislation. So now you’ve got a feel for what it looks like, what the changes are, and we really would like to hear from you detail about from providers what they need to do to make the changes, from workers what they will need to understand particularly things like the new statement of rights and how the whistleblower protections operate. So yeah we’re really keen to hear from people about the current proposed timeframe. Thanks Amy. And Janet might have something to say from an implementation perspective on that as well.

Janet Anderson:

Yes. Happy to Mel. As you say once the new obligations are in place under the new Act we must regulate accordingly, that there’s non slippage which is allowed to us. We need to perform under the legislation. But what does that mean? And I think in this webinar and subsequently there will need to be some unpacking of that because as is the case now we expect compliance, we expect conformance, and where we don’t find it the first thing we do is ask why. Why is there non‑conformance? Now if we find a provider who is working hard at conforming and clearly is very determined on putting into place the necessary arrangements to meet expectations we will have a different regulatory posture towards them than somebody who says ‘There’s a new Act is there? Fancy’ who really hasn’t been paying attention, who hasn’t put their shoulder to the wheel, is not trying to conform.

So there is a very clear difference between those two. In the first case where there are no or low risks to people receiving care we will work with the provider to assist them to understand what they need to do and to get on and do it. In the latter instance where a provider is unwilling or unable to address compliance and doesn’t seem to be particularly exercised about the need to be compliant and that’s accompanied by heightened levels of risks to people receiving care, as you would imagine we will have a much more intensive engagement. We will be looking for them to sharpen up their act pretty quickly, to get their house in order, to ensure that they’re managing their risks to the people who are receiving care and that they are moving swiftly towards compliance. Now that actually is our current setting as well.

So the Act goes live, the new standards go live with the new Act, and the way in which we regulate will be very clearly shaped by the disposition, the demeanour of the provider and the effort that you guys are putting in to ensuring that you are conforming with your obligations.

Amy Laffan:

Thanks very much Janet. Caroline I think this one is for you.

Q:        The summary paper outlining the consultation findings calls out that 85% of respondents believed that online platforms should be required to register. Why are platforms who are delivering aged care services via independent contractors not being required to register as a provider?

Caroline Turnour:

Okay. Thanks Amy. So you’re absolutely correct. The public consultation was very convincing in that the community wants online platforms to be regulated. So the way we’re regulating them is that while they will not be registered providers, online platforms will have a regulatory process relating to their care provisions to ensure safety and quality for older Australians. There are many different online platforms operating in the aged care service sector as we know and online aged care platforms must declare on their website if they are registered or not. Section 6, page 63 of the exposure draft provides more information and there is also further detail in the Consultation Paper on what is being proposed for online providers to regulate this area of aged care.

There will now be a statutory duty of operators of aged care digital platforms that enforces the obligations of these providers to one, notify the Commission if they are operating a platform, implement a complaints management system and manage complaints in accordance with that system, implement an incident management system and manage incidents in accordance with that system, display on the platform a summary of the explanation of the complaints management and incident management system, and display the aged care statement of rights in a way that is easily accessible to older people seeking to access aged care services, and report to the Commissioner, the Department and the Complaints Commissioner or the Aged Care Inspector General any information which is prescribed for them in the rules.

So the Department’s primary concern here is that the parties delivering care services is registered and regulated so that older Australians can have trust and confidence in the safety and quality of the services being provided and there’s line of sight. So in relation to the question in relation to subcontracting in this space all of those obligations that we referred to above are managed through the registered provider who is subcontracting those services. So the new Act classes them as associated providers. So there is regulation there and it is the responsibility of the registered provider that is subcontracting these services to ensure the associated provider is meeting all the requirements and obligations associated with the delivery of that care. Any worker delivering services to older people on behalf of the registered provider as a direct employee or by other arrangements such as subcontracting is considered an aged care worker of the provider. All workers employed or otherwise engaged by the registered provider are required to comply with the Aged Care Code of Conduct and undertake appropriate screening requirements. So both systems will be registered under the new Act. Thanks.

Amy Laffan:

Thanks Caroline.

Caroline Turnour:

Sorry. Will be regulated. Thank you.

Amy Laffan:

So while the current draft hasn’t gone with registration for those online platforms as providers there’s some really quite significant regulatory obligations on them that kind of don’t exist that aren’t required at the moment. So a bit of a change there. Mel.

Q:        I note that there is no definition of supporters and representatives in the glossary. I assume that these terms do not include advocates. Is that correct?

Mel Metz:

Yeah. It is correct that it doesn’t include advocates. Supporters and representatives are new concepts and we have picked that language up from a proposal from the Australian Law Reform Commission and it was also recommended by the Disability Royal Commission that that language is picked up by states and territories. So a supporter is effectively someone who can assist an older person to navigate the aged care system. For example they can receive information about the aged care services that someone is providing but they can’t make decisions for someone else. A representative is on the other hand someone who in circumstances where a person can’t make a decision can step in and make a decision for them.

The really important thing about supporters and representatives is that under the proposed new Aged Care Act they have really strong duties to assist people with supported decision making. So even where somebody might have diminished capacity to make decisions a representative has to assist that person to make a decision, and if they can’t assist them, if the person really can’t make the decision on their own and they have to step in, they have to follow some principles to make sure that they’re taking into account what that person’s wishes are or would have been. And they have to take steps to try and find out what that would be.

So they’re not directly defined in the glossary but there are a couple of provisions in the legislation that talk about what supporters and representatives are and they are sections 376 and 374.

Thanks Amy.

Amy Laffan:

Thanks. And it’s not that we won’t be recognising advocates or there won’t be a place for advocacy in the new Aged Care Act. That’s not the case. They’re just reflected in a different part. That’s right. Thank you. Janet I think this one is for you and that is:

Q:        Will there be an updated template of the self-assessment tool?

Janet Anderson:

The answer unequivocally is yes, there will be. We are putting it in as part of the package that we’re releasing early next month that I was describing in response to an earlier question. And it will be available for consultation so if providers consider that it might be able to be improved we would be very pleased to hear any suggestions in that regard.

Amy Laffan:

Thanks Janet. And it looks like we might be running out of questions. So please do send your questions through through Slido. I’m not sure where to go from here, whether any of our panellists have anything that you specifically want to mention as things that we’ve heard so far in consultations and things that we’re interesting in hearing feedback on. Hang on. Here’s one through. And I think this relates to what you mentioned earlier Caroline about there being kind of guidance materials and rules. So this could be a question for Caroline. It could be a question for Mel.

Q:        Is there a timeline for release of the guidance package?

Or it could be a question for Janet in terms of the package that you were talking about.

Janet Anderson:

Can I take it first? Yes. Today is the 18th of January. We’re aiming for release in early February, so literally a fortnight away. And that’s the best effort plan. I think it will be around that time and we certainly don’t want it to be any later than that so keep an eye out for it please.

Amy Laffan:

Thanks. And it would be fair to say that as you get questions or as more is known then you’ll be able to update that guidance package?

Janet Anderson:

Absolutely. Yep.

Amy Laffan:

Mel for you.

Q:        When will the draft of the subordinate legislation and other related legislative instruments be released?

Mel Metz:

Yeah. That’s a good question and something that’s definitely front of mind for me because we are working on that at the moment. So our plan given the current timeframes is to have that package of subordinate legislation available for people to have a look at while the primary legislation is going through Parliament. So that will almost be an exposure draft process of the new rules where people can have a look at them where they won’t be finalised at that point. They’ll also be really important for the Senate Committees to see what’s in the new subordinate legislation. So that’s our plan at the moment. I will say about the subordinate legislation that there are a number of aspects of it that will probably just look exactly the same or very similar to what we have now. And a really good example of that is the Code of Conduct. And some of the subordinate legislation, the really important, new, significant parts you will already have had visibility of. So something like the strengthened quality standards, they’ve been published on the Department’s website and are available for people to have a look at already. Thanks Amy.

Amy Laffan:

Thanks. And I think – okay.

I think Janet this is probably for you. It’s about the current process.

Q:        What is the process between now and the 1st of July for an organisation or business wanting to become a provider of Commonwealth funded services? Is it still the 61 page approved provider application form or is the advice to hold off until provider registration takes effect?

Janet I can’t hear you. I’m not sure if that’s just me.

Janet Anderson:

I beg your pardon. I couldn’t attest to 61 pages but I’ll take that part of the question on trust. Yes it is a comprehensive form and for good reason. Because it’s about market entry and it’s about access to Commonwealth subsidies. So we take it very seriously as I’m sure all applicants do. My strong recommendation is if we have somebody watching or somebody who knows somebody who is keen to be considered for approved provider status that they put their application in. There will be transition arrangements. So if something is part done before we get to the 1st of July and the new Act we will have arrangements for carrying it forward into the new financial year without having to terminate the process and recommence it. So I do give that assurance. But I certainly wouldn’t delay.

Amy Laffan:

Thanks Janet. Mel this is a good question, I think one that a few people are probably thinking of reading the exposure draft, and that is:

Q:        What is the basis for linking sickness with the definition of residential aged care instead of age?

Mel Metz:

Thanks Amy. It is a really good question and I’m glad that I get an opportunity in the webinar to address this, because I know people have probably looked at that and thought it looks a little bit strange. So the reason we have that reference to sickness in the definition of residential aged care is due to the new constitutional basis of the new Act. And I’ll just take a step back from that and make it really clear that the Commonwealth Government can’t legislate about whatever it likes. There are limits in the Australian Constitution about the subject matter that the Commonwealth Government can legislate about. So we have to work within those limitations.

And so what we’re relying on for the new Aged Care Act particularly for residential aged care is the sickness and hospital benefits power part of the Constitution. And we will also be relying on the external affairs power to implement the Convention on the Rights of Persons with Disabilities. So they’re the two main heads of power that we’re going to be relying on. Sickness in the context of the Constitution has a very particular meaning. It’s a very broad meaning and it doesn’t mean sickness in the way that we talk about being sick, kind of needing to go home from work or stay in bed. It’s much broader than that. What it does mean is that residential aged care from the commencement of the new Act will have to have an element of clinical care involved in it and you’ll see that in the definition as well where we’ve got a reference to nursing care. Thanks Amy.

Amy Laffan:

Thanks Mel and thank you to whoever asked that question and allowed Mel to talk about constitutional law because it’s her favourite thing to talk about. Next question is:

Q:        How final is the exposure draft and will consultation feedback have an influence?

And I might start there and say this is absolutely a genuine consultative process. In fact we got where we’ve got to today because of past consultation processes. So it’s already built on the back of consultation and we really do want to hear from you what we’ve got right, what we’ve got wrong, what doesn’t seem to make sense, what requires more guidance material. So please do provide your feedback on the exposure draft. We will be looking at it and we do anticipate making changes as a result of that feedback. Is there anything you’d add to that Mel?

Mel Metz:

I think Amy I’d just reiterate how incredibly valuable it was hearing from people during our first round of consultation. We did make a lot of changes based on what we heard and I think this version of the exposure draft is what it is because we had that feedback. And I’m really keen to have people along to the face to face workshops because they were a great opportunity last time to hear directly from people who are receiving aged care or who have family receiving aged care or from workers. I’m going out to a few of those face to face workshops myself as are people from my team so we’ll be listening directly to what people have to say in those workshops. So it absolutely is a genuine consultation process and what we hear is going to shape what the Bill looks like that’s introduced into Parliament.

Amy Laffan:

Thanks Mel. Janet this one is for you and it starts:

Q:        The strengthened standards clearly delineate board and provider responsibilities. Will the guidance materials address this?

Janet Anderson:

And the answer is yes, absolutely. We are providing content that will be relevant for governing bodies, for providers and also for aged care workers. And we know that this is of keen interest. We are very eager to receive feedback on the guidance that we’re delivering for those different stakeholder groups.

Amy Laffan:

Thanks Janet. Caroline.

Q:        How will registration categories 1 to 3 ensure the rights of older people are upheld when only standards reference rights and the Code of Conduct doesn’t? Will there always be a registration category obligation to uphold rights?

Caroline Turnour:

Yes there will. The statement of rights will apply to all aged care services regardless of what category they’re in. And the new Act provides a number of new levers for the Commission to make sure that that is upheld.

Amy Laffan:

Thanks. I might just stay with you for the next question which is:

Q:        Will the maximum number of years for accreditations in RACFs remain at three years?

Caroline Turnour:

That is the proposal. Yes.

Amy Laffan:

Yep. So noting we’re not really talking about accreditation anymore. We’re talking about that registration process.

Caroline Turnour:

So an approved provider in the current system will be deemed a cost and become a registered provider and the registered provider will exist at the proposed time period for three years.

Amy Laffan:

Thanks.

Caroline Turnour:

And then there will be a re-registration process.

Amy Laffan:

Yep.

And I think also too like the current process the Commission might have a shortened re‑registration process for those providers of particular interest as well. So there’s still a little bit of flexibility around that three year period.

Caroline Turnour:

Exactly. And that’s one of the great things about this new Aged Care Act which is being developed is that the ability for the Commission to respond to providers and the quality of service that they deliver, there’s a whole heap of new levers that they’re able to do and much more flexibility to make sure that we’re regulating in a relational way and that is one of the great benefits that will come from the new regulatory model.

Amy Laffan:

Thanks. Janet did you have anything to add to that or shall I move on to the next question?

Janet Anderson:

No. Caroline nailed it. It really is an asset under the new Act that we can use conditions that are attached to a particular provider or we can use registration period. There are a number of levers available to us just as Caroline said.

Amy Laffan:

Great. Thank you. I think this one will be for Mel and that is:

Q:        Will the standards and new Act be released at the same time?

Or maybe even Janet can help out. Because the draft standards of course are already on the website.

Mel Metz:

Yes. So they are available to look at already. So the strengthened quality standards will form part of the rules and there will be a single set of rules that goes alongside the new Aged Care Act. The requirement for those rules will be that the Minister makes those ahead of the commencement of the Act. But as I said earlier we’re very keen to get as much of the rules out for people to see as possible during the Parliamentary passage process. So available to look at now definitely. Thanks Amy.

Amy Laffan:

Here’s another one for you. So someone is asking you to explain more about the implications of supported versus the substitute decision maker in the context of home care services.

Mel Metz:

Yeah. So if a person receiving Commonwealth funded aged care services appoints a representative, whether they receive home care services or any other aged care services, that representative will be able to support the person to make decisions or as a last resort make decisions on their behalf. And a key duty of the representative is to apply their best endeavours to maintain the ability of the older person to make their own decisions. And they can only make a decision on behalf of someone if the older person either doesn’t want to make the decision themselves or it’s not possible for them to make the decisions. So in that circumstance the representative makes the decision based on a number of supported decision making principles which are set out in the legislation and they prioritise what the older person’s will and preferences are or what they’re likely to be, not what the representative thinks is best for the older person. So effectively substitute decision making only applies in a last resort circumstance where a person really can’t make a decision for themselves otherwise supported decision making applies up until that point.

Amy Laffan:

Maybe a bit of context Mel is that this kind of supported decision making framework came out of a Law Reform Commission report.

Mel Metz:

Yeah that’s right. And it is a real shift. It will be a big cultural shift I think in aged care and aged care is really going first with some of this. So the Disability Royal Commission recommended that supported decision making be adopted in the jurisdictions as well. I’m really pleased that we can do this in aged care but it is a change from seeing people as either having capacity to make decisions or not having capacity to make decisions. It recognises that there is a spectrum of capability for making decisions and that most often what people need is help to make decisions rather than someone stepping in and deciding what is best for them. So it’s a big cultural shift.

Amy Laffan:

Thanks. Caroline.

Q:        When will the new registration process go live? Will this be in line with the legislation 1st of July 2024 or the Support at Home deadline of 1st of July 2025?

Caroline Turnour:

Thank you Amy. So the new regulatory model, new regulatory approach will commence when the new Aged Care Act commences. The new home care reforms – the regulatory model has been designed so it doesn’t matter what funding program is in existence. We’re going to be regulating the services. And so it will commence when the new Aged Care Act commences. The home care reforms will come in in 2025 and then further reforms down the track. And there will be rules and regulations associated with the delivery of those funded programs but the actual framework for the regulation and the statement of rights and all of those elements that are new will come in with the new Act. So there is phases because the new Home Care Act is being phased but essentially the new model comes in when the new Aged Care Act commences. So a little bit complex but hopefully people can understand that there are phases with the program reforms but there’s not phases with the regulatory approach.

Amy Laffan:

Thanks Caroline. And we’ve just had a burst of questions come through at the last minute so I’m going to go for those that are most upvoted. And there is one here. Mel I’ll start with you.

Q:        Why is the Complaints Commissioner an Aged Care Quality and Safety Commission Commissioner appointment and not independent of the regulator?

So I think some of the background of that is about the capability review and what was recommended there but I’ll hand over to you.

Mel Metz:

Yeah. Thanks Amy. So that’s right. The capability review recommended that the Complaints Commissioner be an SES position, a senior officer within the Aged Care Quality and Safety Commission. And we also think it’s really important for the complaints function and the regulatory function to sit side by side so that there can be proper flow of information between those functions within one organisation. And we also have the view that there needs to be a single point of accountability on complaints and all of the regulatory framework. And at the moment that’s Janet and we think it should remain Janet and the Commissioner. So that’s why we’ve set it up in the way that we have.

The way that it would work is that the Commissioner will delegate functions relating to complaints to that SES officer within the Commission who will have a very specific role in relation to complaints. That’s Louise at the moment. Some of you may know Louise or have heard from her previously. So very similar to what we have now but recognising that role in a legislative way.

Amy Laffan:

Thanks. Janet here’s one directed to you.

Q:        How do you feel you can balance the tension between giving the students the test results and yet giving the sector enough information to confidently manage implementation?

Janet Anderson:

Look it’s a good question. Obviously they’re using metaphors there but it’s about providing enough guidance to give providers confidence - - -

Amy Laffan:

You’ve just dropped out.

Janet Anderson:

Sorry. I don’t know quite why. Not so much that they get a how to guide. I’m pretty sure that we have a good handle on this. We will never tell a provider exactly what decisions they need to make in order to conform. The how question is very much in the remit of the provider to determine. We know what the obligations are and it’s our job to ensure that providers are aware of the obligations and indeed how we will assess them. But the way in which they achieve conformance and ideally continuous improvement towards excellence is a matter entirely for them. And again and again we are delighted by the innovation we see in providers’ decisions about how they deliver the best possible care and outcomes for the people that they serve.

So our guidance will go as far as it needs to go but the detail of implementation will always reside with individual providers and the judgments they make and the conversations they have with their consumers in order that they are delivering care and designing the delivery of that care in partnership with the people who are going to benefit from it.

Amy Laffan:

Thanks Janet. There is a comment here which says:

Q:        So this is not a consultation on the draft. This is a consultation on the implementation of the Act. I would like to discuss Act and the principles that it clearly has not considered.

So no, this is actually a consultation on the draft. We welcome your comments on the concepts, the actual writing, the phrasing, all of those things that are combined into that exposure draft. Also very interested in your feedback on things that you think are missing or that haven’t been considered. But at the same time we are interested in implementation because an Act isn’t going to work if it can’t be implemented. So I hope that answers your question but if you see that there are gaps or things missing please do raise them with us as part of your consultation and feedback. Mel is there anything you’d add to that?

Mel Metz:

No. I think that’s exactly right Amy. It’s not an Act until it goes through Parliament and the Senate Committees are going to have views on what this legislation looks like as well. So there’s multiple opportunities beyond this consultation process as well for people to comment on what this legislation looks like so it is absolutely a genuine consultation process.

Caroline Turnour:

And just to follow up the concepts and so on around rights-based needs, person-centred care is being implemented through the regulatory model. So the two are very much intertwined. And when we talk about the regulatory model we’re talking about how do we express those rights and obligations in the real world. So they’re very much the same in our world because we’ve got to operationalise them through the regulatory model.

Amy Laffan:

Thank you and thank you to everyone on the panel. We’ve just hit three o’clock so that brings us to the end of our time together. As I mentioned on the opening of today’s webinar I urge you to visit our Consultation page and to have your say about the exposure draft or to attend one of our scheduled workshops. If you have questions please send us an email at agedcarelegislativereform@health.gov.au. And following the conclusion of the consultation process we will publish a consultation report where you can read about what we have heard.

Thank you again for taking the time out of your very busy days to join us. We really appreciate it. Thank you.

[Closing visual of slide with text saying ‘Consultation on the new Aged Care Act exposure draft’, ‘Thank you for attending today’s webinar’, image of a QR code, ‘Scan here for new Aged Care Act consultation page’, ’18 January 2024’]

[End of Transcript]

 

Presenters

  • Amy Laffan, First Assistant Secretary, Quality & Assurance Division 
  • Mel Metz, Assistant Secretary, Legislative Reform Branch 
  • Caroline Turnour, Assistant Secretary, Harmonisation & Regulatory Strategy Branch 
  • Janet Anderson, Aged Care Quality and Safety Commissioner.

About the webinar

Public consultation was held on the draft new Aged Care Act which will put the rights of older people at the centre of aged care.

Watch this webinar to:

  • learn more about the draft law
  • ask questions
  • find out more about the consultation. 

We encourage people to read one or more of these consultation supporting materials and submit their questions before the webinar:

  • full consultation paper
  • plain English consultation paper summary
  • exposure draft.

This webinar recording is relevant to:

  • older people, their families and carers
  • aged care providers and workers
  • sector peaks, associations and unions.

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