Ensuring the future of quality aged care – Webinar

[Opening visual of slide with text saying ‘Australian Government with Crest (logo)’, ‘Department of Health and Aged Care’, ‘Ensuring the future of quality aged care’, ‘September 2024’, ‘agedcareengagement.health.gov.au’]

[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]

Michael Lye:

Thank you all for attending today’s webinar. I’m Michael Lye, the Deputy Secretary of the Ageing and Aged Care Group from the Department of Health and Aged Care. 

I want to start today by acknowledging the traditional custodians of the lands on which we are virtually meeting today. I am based in Canberra on the lands of the Ngunnawal people. I acknowledge and pay respect to their continuing culture and the contribution they make to the life of this city and this region. I also extend that acknowledgment and respect to other families with a connection to this region and any other Aboriginal and Torres Strait Islander people who are here with us today.

This webinar today is part of a series of webinars on aged care reforms being held in the coming weeks. Please visit our website and register for upcoming residential aged care funding webinar on the 18th of September and a Support at Home Program webinar on the 19th of September.

You can submit questions in the Slido box today on the right hand side of your screen and we’ll answer these in more detail at our webinar next week. All questions and answers will be published in our FAQ document on our website. Please be aware that the session today is being recorded and will be published on our website in the coming days.

The changes we are making today address a growing demand for aged care services. Over the next 40 years the number of people over 80 years of age is expected to triple to more than 3.5 million. In particular there is growing demand for home care that is projected to continue well into the future. Over the next 20 years the number of older people using home care is expected to double to almost two million people. We need a home care system that can meet more complex care needs as those with greater frailty remain in their homes.

The Royal Commission identified a need for significant quality improvements to aged care. We’ve also identified that additional funding is needed to meet future demand, deliver quality improvements and support a confident aged care sector for the future. To build the aged care rooms needed by older people in 2050 will cost an estimated $37 billion dollars. An upgrade in existing rooms would add a further $19 billion.

The current system also doesn’t reflect that older people are wealthier than previous generations. The increased wealth has largely resulted from maturing superannuation combined with high asset wealth through the family home and other investments. However while the asset wealth of many older people has increased there will be a group of people with less means. The tax burden and therefore the cost of Government services is being shared among an increasingly small group of people as the proportion of the working age population declines and a proportion of older people, most of whom do not pay income tax increases.

For all these reasons the Government is pursuing a package of measures to support structural reform to ensure fairness, equity and sustainability of aged care funding to make sure older people receive quality care now and into the future. These include for home care investment in a new Support at Home Program and a contributions approach for Support at Home. For residential care changes to daily living and care contributions and the package of accommodation contribution reforms.

And across the sector supporting delivery in thin markets and encouraging innovation for improved quality and transparency.

The Australian Government introduced the Aged Care Bill 2024 to Parliament yesterday. The new Aged Care Act is expected to commence from 1 July next year, 2025. Amid the changes there are some important things that will stay the same. The Government will continue to be the major funder of aged care. The Government won’t be introducing a new tax or levy as a way to fund the aged care sector. There won’t be a change to how the family home is means tested when determining aged care contributions. Older people with low means and indeed all older people will continue to be supported by the Government to access aged care. And finally a no worse off principle will protect people currently in the aged care system.

And now we’re going to move into a section where officials will provide information on elements of the reforms. So I’ll hand over to Nick Morgan who’s the Assistant Secretary of the Support at Home Reform Branch who’ll be sharing some more information about the Support at Home reforms.

Nick Morgan:

[Visual of slide with text saying ‘Support at Home’, ‘This section will cover:’, ‘Support at Home system design’, ‘Support at Home contributions’]

Thanks Michael. Hi everyone. I’m Nick Morgan. I look after the Support at Home Reform Branch here in the Department. Look we’ve done a number of these webinars over the past few years on Support at Home and it is good to finally be able to provide an overview of the final program arrangements. Today I’ll provide a really high level summary of some of the Support at Home details agreed by Government and as Michael said next week there will be another webinar with a lot more detail.

So Support at Home is the new in-home aged care program commencing in July 2025. It will initially replace the Home Care Packages program and the Short Term Restorative Care Program and then from no earlier than July 2027 it will also incorporate the Commonwealth Home Support Program. Support at Home will better support the community’s preference to age at home by improving access to early interventions to stay independent as well as increasing the level of support available for people with complex needs and ensuring efficient prices so that funding goes further. The Support at Home Program is being introduced with a real growth rate to reduce wait times and the target is an average of three months from assessment to services from July 2027.

So I’ll now go through some of the key features of Support at Home including classifications and funding model.

So for ongoing services Support at Home will move from the four Home Care Package levels we have today to eight classifications with quarterly budgets. These classifications will be determined for people at the aged care assessment using a new integrated assessment tool. The classifications will start at around $11,000 per year and go up to a top classification of around $78,000 per year which is higher than the current Home Care Package Level 4. Under Support at Home assistive technology and home modifications will be separately funded in addition to the budget for ongoing services.

I should note that existing Home Care Package clients as well as those waiting for a package on the National Prioritisation System will not be reassessed. Existing home care clients will have a budget that is the same as their current Home Care Package level and for people waiting for an approved package level they will move onto a budget at that level when the budget is available. People will only move onto one of the new classifications if they are reassessed down the track and moved onto a higher budget.

There will also be two short term classifications with 12 week budgets. Firstly a short term restorative classification for 12 weeks. Currently only people with more complex needs can access the Short Term Restorative Care Program because people must be assessed by an ACAT to access that program. Through the new single assessment system lower needs clients will also be able to access this pathway under Support at Home which offers up to 12 weeks of allied health focused support. Note that people on this pathway will also be approved for assistive technology that will be separately funded.

There will also be a new end of life pathway for people who’ve been diagnosed with three months or less to live. This classification is for an amount of $25,000 over 12 weeks to boost in-home aged care services at that time.

Under Support at Home people receive a separate funding amount for assistive technology and home modifications. These funds will be available for up to 12 months and will cover both the equipment required and the prescribing and wraparound support needed for assistive technology and home modifications. The new assistive technology and home mods scheme will also include equipment loans. And we’re currently trialling the loan scheme in two regions with EnableNSW and loans are currently occurring there.

All right. This next slide summarises the funding model for Support at Home. On the left hand side are the sources of funds for service providers. And in line with what I’ve just outlined providers will bill for services and supports delivered against client budgets. This may include individual budgets that may be for ongoing services and/or short term restorative services or the assistive technology and home modifications. In addition a portion of every client budget will be assigned to their provider to deliver care management support. This care management funding will sit at the provider level not the individual level so that providers will have a fund that they bill against to deliver care management services for all of their clients. And that care management fund will not be reset quarterly given that expenditure can go up and down.

The third category is unspent funds that may be held by Home Care Package clients. These funds will carry across into Support at Home and still be available.

So all services delivered against these funding sources will be invoiced at unit prices for each service delivered. Prices will have to be below price caps set by Government based on the advice of the Independent Health and Aged Care Pricing Authority. Those draft price caps will be becoming available a bit later this year.

The fourth funding source is consumer contributions which we’ll hear more about shortly. The fifth is thin market grants which I talked about in previous webinars. Allocation of these grants will be via a competitive grant process with initial two year Grant Agreements. Grant funding beyond that date will be settled in the context of arrangements to incorporate the Commonwealth Home Support Program into Support at Home. And access to those funds will be as I said through a competitive grants process but those grants won’t be tied to individual service levels.

So if we move onto what this means for existing Home Care Package clients. Well first of all all clients will automatically transition to the new program so there won’t be any reassessment. Existing clients will receive a budget that equates to their existing Home Care Package. That budget will be divided by four to provide the amount you receive at the start of each quarter. There will be no package management fees but there will be new price caps for services that will incorporate administration costs.

Existing clients as I said will retain their unspent funds. They can be used to buy extra services when a budget is exhausted or they can be used to access assistive technology or home modifications.

People waiting on the National Prioritisation System will receive a budget equivalent to the Home Care Package they were approved for when it becomes available. And for Commonwealth Home Support Program or CHSP clients the existing program will continue to operate. The CHSP will continue to take on new clients and expand through growth funding until it transitions to Support at Home.

So in terms of our next steps we’ll be running another webinar which is planned for the 19th of September I think next week with more detail about Support at Home. We’re also planning Q&A sessions in the coming weeks where we’ll just take questions from providers, I think one where we’ll focus on consumers. Our website is being updated and we’ll continue to add more detailed information over the next week or two and then ongoing. We’ll be running further sessions with service providers, software vendors and other stakeholders and we’ll also be looking at program documentation being finalised with an initial program handbook that brings together the details of Support at Home into one place that will be going up over the next week or so onto our website. We’ll be running a grant process for providers operating in thin markets down the track and we’ll also be getting out in person and start talking to people directly about the reforms.

So I’m going to leave it there for today. Tune in again next week for more on Support at Home. For now I’ll hand over to Nick Hartland who’s going to discuss participant contributions. Thank you.

Nick Hartland:

[Visual of slide with text saying ‘Support at Home participant contributions’, ‘This section will cover:’, ‘participant contribution arrangements under Support at Home’]

Great. Thank you very much Nick. Hi everyone. I’m Nick Hartland and I’m going to take you through the reforms to participant contributions. First we’ll do Support at Home and then with my colleague Susan Trainor we’ll take you through the changes in residential care.

So let’s just start by reminding ourselves what the current approach is in the Home Care Packages. So as people will know there’s three types of these that a person can be asked to pay. A basic daily fee, an income tested care fee, which about 14% of people pay, and additional service fees, if someone wants to pay for more services than are covered in their budget.

So the income tested care fee and the basic daily fee are fees that apply regardless of the services that are actually used. So the first major change that has come out of the Taskforce and Government’s response is that in Support at Home as recommended by the Taskforce contributions will be made on the basis of the services that a participant actually uses. And this is what older people consistently say is their preference whenever we ask them about whether the fees in aged care make sense and how they would like to see them change. So what we’ll be doing is that we’ll be setting contributions as a percentage of the cost of the service in the future system.

Contributions will also vary on the wealth of the participant and that’s of course something that we do now with the income tested care fee. But to simplify the system in Support at Home we’ll use the aged pension means test, not a special aged care income test that we currently apply to people. And I’ll come back to how that works in a couple of slides.

So the second major reform is that contribution rates will be different for different types of services. So Nick mentioned the service list in his presentation. So that will be sorted into three categories as you can see on the slide. Clinical supports such as nursing and physiotherapy will not require a contribution. Supports for independence – and by that we mean personal care and like services – will have a moderate contribution and supports for everyday living such as gardening and cleaning will have a higher contribution. These rates mean that clinical services will be fully funded by the Government no matter what the circumstances of the participant and that many of the services provided for everyday living, which are types of services that people have either funded or provided for themselves, will have a higher contribution rate. This approach is consistent with the reforms in residential care which I’ll come to in a second.

So this slide is the kind of core of the new system and it sets out the rates of contributions by services by people’s assessed well. So as you can see from the slide no contributions will be required for clinical care and contributions are lower for independence and everyday living. And then we’re proposing like we do at the moment a situation where as people’s income and assets increase their contributions increase. But we’ll be using the pension system because people are familiar with that before they join aged care and it’s a widely accepted part of Australia’s social fabric. So full pensioners, that is people who receive the maximum rate of the aged pension because they have income and assets under the pension free areas, will make a low contribution. So as you can see from this slide that’s 5% for the cost of services for independence and 17.5% for the cost of everyday living supports. 

Then for part pensioners and Commonwealth seniors health card holders contributions will increase as their income and assets increase. And we’ll use the aged pension means test to determine the precise percentage contribution that people pay. And it will vary for each person depending on their level of income and assets. Self-funded retirees who do not hold a Commonwealth seniors health card will make the highest contribution and you can see from the slide what those are. So that will be 50% of the cost of services for independence and 80% of the cost of services for everyday living.

We might go to the next slide.

As Michael said there will be a no worse off principle that applies for these reforms. So anyone who was receiving a Home Care Package in the National Priority System or assessed as eligible for a Home Care Package at the time the reforms were announced, which was yesterday the 12th of September, will have the benefit of this no worse off principle. And what this will mean is that they will make the same contributions or lower than they’re currently required to do and when people in the system now move to residential care they’ll keep the same arrangements that apply at the moment. So this means that for Home Care Package recipients who do not currently pay an income tested care fee they won’t pay a fee in Support at Home for as long as they remain in Support at Home. And for around 14% of Home Care Package recipients who pay an income tested care fee currently they will pay a discounted rate which ensures that they’re not paying more. When these participants move to residential care they’ll be able to stay on the existing residential aged care means testing arrangements. No changes to the accommodation payments which we’ll outline in a second will apply to them because that’s an arrangement between the resident and the provider.

And also just in Support at Home fees it’s also important to note that the Government has agreed to $130,000 lifetime cap on contributions to Support at Home and non-clinical care in residential care.

[Visual of slide with text saying ‘Residential care’, ‘This section will cover:’, ‘changes to everyday living and care contributions’, ‘accommodation contribution reform’] 

All right. So Susan and I will now take you through the residential care and I’ll do the first couple of slides and then hand over to Susan. So firstly I think it’s important to note what’s not changing in residential care. So the basic daily fee which all people are asked to pay won’t change and the accommodation supplement and means testing the accommodation supplement including the treatment of the family home won’t change under these reforms. So there’s no change to the way that the family home is assessed and treated in residential aged care. We will also be abolishing the current means tested care fee and replacing it with some different arrangements. And so we’ll just outline those now.

So the first change is that there will be a new means tested contribution to hotelling. So currently the hotelling supplement is paid at the same rate for everybody regardless of their means. In future from 1 July 2025 the hotelling supplement will be means tested. So people who can afford to pay for some or all of the cost of their hotelling will be asked to make a contribution. And this will apply to people who have assets over $238,000 or income over $95,400. So that contribution will gradually phase in. So we’ll use the 7.8% of assets over those limits and 50% of income and it will top out at the limit of the hotelling supplement. So the hotelling supplement contribution will never be more than the total value of the Government’s hotelling supplement which as at 20 September is $12.55. For people that pay a part rate of the hotelling supplement the Government will pay the difference between the resident’s contribution and the full rate of the hotelling supplement.

Take us to the next slide.

Okay. So in addition to changes to the means testing of the hotelling supplement there will be a new contribution to non-clinical care. And as I said the current means tested care fee which can be at its most the full cost of care will be abolished, and so instead for people who have assets or income above another threshold they’ll be asked to make a contribution to their non-clinical care costs. And this will apply for people who have assets over $500,000 or income over $131,000. And it will be up to a limit of $101.16 per day which is the cost of non-clinical care in the lowest AN-ACC classification.

So again if someone’s making no contribution or a part contribution the Government will pay the full cost of that fee. And this contribution will be capped at four years. So after four years people won’t be asked to make a further contribution to their non-clinical care. And the $130,000 lifetime cap will also apply to contributions to non-clinical care. So any contributions to Support at Home or to non-clinical care will go towards that lifetime cap and once more than $130,000 has been paid people won’t be asked to pay any more.

So we’ll just go to the no worse off principle. So again as is the case with Support at Home people who are in the system at the moment and have made arrangements that were done on the understanding of the current system will have their situation preserved. So they won’t be asked to pay the new fees. This arrangement will apply to everybody who is in residential aged care before 1 July 2025. So anyone in care on 30th of June 2025 will have their current means test setting preserved and the existing $80,000 lifetime cap preserved. This group also won’t see their accommodation payments change because they’ve already signed a contract with a provider.

And I think that probably takes us to the higher everyday living fee and I’ll ask Susan to take the group through that.

Susan Trainor:

Wonderful. Thank you. Hi. I’m Susan Trainor, Assistant Secretary of the Funding Operations and Analysis Branch. I’ll be taking you through the higher everyday living fee and accommodation arrangements. The Aged Care Taskforce recommended that residents and providers should be able to more easily negotiate better or more daily living services for a higher fee subject to strong consumer protections. From 1 July 2025 a new higher everyday living fee will be introduced replacing the current additional service fees and extra service fees for new residents. The higher everyday living fee will allow residents to purchase goods and services that are additional to or of a higher quality than the standard daily living services that all residential providers must deliver for all the residents. Examples of these services include wine with meals, on site hairdressing or pay TV. Importantly strong consumer protections will apply including cooling off periods, regular reviews to ensure services remain of value and a prohibition on making the fee a condition of acceptance for new residents. For existing residents who pay them additional service fees and extra service fees will be phased out over 12 months in favour of the new higher everyday living fee.

Moving on now to accommodation. The accommodation measures respond to the need to support viability while setting out a pathway to phase out refundable accommodation deposits or RADs in the longer term. One of the main immediate reforms is the introduction of retention for refundable accommodation deposits. This delivers a recommendation of the Taskforce. Providers will be required to retain a portion of all new RADs for residents who enter care on or after 1 July 2025. Residents who entered care before this date will not pay a retention on their RAD. The retention rate will be set at 2% per annum and the amount will be deducted from the RAD monthly. The retention period will be capped at five years to protect residents who remain in care for a long time. This change will provide an improvement to provider financial sustainability noting that a large share of providers are making losses on their accommodation. Importantly it will provide funding to support the necessary new builds and capital upgrades to meet future aged care demand.

Another change is the indexation of daily accommodation payments or DAPs for new residents entering care from 1 July 2025. Payments will be indexed twice per year in line with changes to the Consumer Price Index bringing the treatment of DAPs into line with increases to the Government funded accommodation supplement for supported residents and ensuring that DAPs maintain their value over time to keep up with the costs of providing residential aged care accommodation. 

There will also be an increase to the maximum room price. Under legislation currently providers must obtain approval from the Independent Health and Aged Care Pricing Authority to charge a room price above $550,000. As the Taskforce noted in its report this amount has not changed since 2014. From 1 January next year the maximum room price that can be agreed without IHACPA approval will increase from $550,000 to $750,000. The price will also be indexed on 1 July each year going forward based on the Consumer Price Index. This change will reduce red tape for providers and give them greater confidence in developing or updating high quality accommodation. It will not impact existing residents and there will still be a range of accommodation available at lower prices. The IHACPA process for providers to apply for a price above the new maximum will not be changed.

Beyond immediate reforms there will also be more work to consider settings for accommodation pricing. The Government will undertake a review of the accommodation supplement and a number of other accommodation pricing settings over the coming years. The accommodation pricing review will consider the accommodation supplement rate and indexation arrangements and that will include incentives to encourage providers to offer places to low means residents and to improve the quality of their accommodation.

Finally the Government has agreed to the Taskforce’s recommended approach to considering the phasing out of RADs from 2035 subject to a review of sector readiness. As the Taskforce recommended there will be a quartered approach to the phasing out of RADs. The review to be undertaken will be an independent legislated review and it will take place in 2029-30. This will give aged care providers and investors confidence that the phase out of RADs will be approached with a view to the continued viability over the sector over the short, medium and long term. The review will consider the financial performance of the aged care sector including whether reliance on RADs for capital raising has declined, the impact of reform measures since the conclusion of the Taskforce, capital financing arrangements including for rural and remote providers, impact of RAD phase out and what it would have on the affordability of residential aged care, and if progressing with RAD phase out is recommended a path to an orderly transition away from RADs.

Thank you. I’ll now hand over to Mel Metz who will be discussing the new Aged Care Act.

Mel Metz:

[Visual of slide with text saying ‘New Aged Care Act’, ‘This section will cover:’, ‘recap: new Aged Care Act’, ‘key points of difference in the Aged Care Bill 2024’]

Thanks very much Susan. I’m Mel Metz, the Assistant Secretary of the Legislative Reform Branch. For me and I’m sure for many of you yesterday marked a significant milestone with the introduction of the Aged Care Bill to Parliament. It’s the culmination of many years of engagement with aged care advocacy and provider stakeholders and really importantly older people and their families and carers. And it’s through those valuable contributions that we’ve been able to bring to life the Royal Commission’s vision for a new legislative framework which will support this once in a generation reform.

As part of the Parliamentary process we now expect the Bill to be referred to the Community Affairs Legislation Committee for an inquiry alongside the usual Senate scrutiny committees. It’s usual practice for the Community Affairs Legislation Committee to seek public comment on the Bill and there will be opportunity for people to engage in that process.

Before I go into detail on the changes that you’ll see in the Bill when compared to the Exposure Draft I will provide you with a general recap on what the Bill covers. So the plan is if the Bill passes that the new Act will commence from the 1st of July 2025 and this will align with the launch of the Support at Home Program. The new Act will replace existing legislation including the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018. And we’re also replacing all of the existing principles and rules under those two Acts. What this means is in future there will be a single piece of primary legislation and a single set of rules.

The Bill importantly adopts a rights-based approach outlining the rights of people seeking and accessing aged care in a Statement of Rights and it places individuals and their needs at the centre of the legislative framework. It addresses around 60 Royal Commission recommendations and a number of the Government’s Budget and election commitments. It also provides a single system entry point with clear eligibility requirements and a single assessment system for all funded aged care services. It supports the delivery of a range of aged care services aligning the multiple current programs and establishing a new service list which will prescribe the services that the Commonwealth will fund. And this means that for the first time everyone can go to one location to see all the funded aged care services that an older person might be able to access. And the rules are going to clearly describe each of those services, the service type and the service group and that is the service that providers must deliver.

There will be new system oversight and accountability arrangements. The functions of the system Governor, that is the Secretary of the Department of Health and Aged Care, are specified in the Bill, and this means that the Secretary of the Department of Health and Aged Care will be the steward of the Commonwealth’s aged care system. The system Governor will also protect and uphold the integrity of the aged care system by among other things collecting, maintaining and providing accurate information about the Commonwealth’s administration of the system and monitoring and encouraging the training and development of aged care workers.

The Bill also includes the basis for the new risk-based regulatory model which is designed to increase provider accountability, encourage delivery of high quality and safe aged care services and strengthen enforcement powers of the Aged Care Quality and Safety Commission. The obligations and conditions of registration for aged care providers are part of this framework and some conditions will be imposed on all registered providers for example compliance with the Aged Care Code of Conduct and some will be category specific only applying to certain providers, for example compliance with the Quality Standards.

There are also new duties on providers, responsible persons and digital platform providers which aim to ensure that these parties have strong responsibilities for the health and safety of older people and that they actively work to ensure that people in their care aren’t put at risk and don’t suffer harm. The Bill also provides a legislative basis for nationally consistent aged care worker screening arrangements and these will allow for harmonisation across the care and support sectors especially with the NDIS.

So there are some key points of difference. Consultation on the Bill has been extensive and as many of you will have been involved in that process providing feedback we made a number of updates to the Bill as a result of what we heard. And I’ll take you through some of the most notable changes. So they involve revised supported decision making arrangements to strengthen supported decision making and better align with state and territory arrangements, introducing a positive requirement for providers to uphold rights and clarifying how rights should be balanced, adjusting the governing body membership requirements to enable some exemptions to be specified in the rules – particularly relevant to Aboriginal Controlled Community Organisations and Cooperatives – clarified provisions relating to advocacy and volunteers. Criminal penalties have been removed. They previously in the Exposure Draft attached to the new duties on providers and responsible persons. They now will operate as civil penalties. 

There’s also a new condition for registered providers of approved residential care homes to provide access to vaccinations for workers and individuals. This was previously specified in the principles that sit under the current Act and that’s been elevated to primary legislation. There’s also a new condition of registration relating to providing information to individuals. There’s a new obligation relating to direct care. That is meeting care minute targets. The definition of protected information has also been narrowed as it relates to providers. And a quality care worker body has been included to the advisory body requirements for registered providers and that’s an advisory body to boards.

The whistleblower provisions have been refined and we’ve also ensured independence of the Complaints Commissioner. Very importantly Chapter 4 of the Bill has been included. That was not in the Exposure Draft. And it broadly covers the contributions that the Commonwealth will make towards aged care services, the contributions individuals need to make towards aged care services and how people’s means to make contributions towards the cost of their care will be assessed.

So I’ll now go into a bit more detail on some of those key changes that I’ve highlighted to give you a bit more detail on some of those things that really came through very strongly in the consultation process. So positive duty to uphold rights was something we heard a lot about. So that’s the first key change. We heard from many stakeholders that the Statement of Rights should be supported by a positive duty. What the Exposure Draft required was registered providers not to act in a way that is incompatible with the Statement of Rights and the Bill replaces that language ‘Must not act in a way that’s incompatible with the rights’ with ‘Must take all reasonable and proportionate steps to act compatibly with the relevant rights specified in the Statement of Rights in the delivery of funded aged care services’. 

Using this positive language means that registered providers will be required to actively ensure that the funded aged care services they deliver meet the rights specified in the Statement of Rights. And this is really intended to shift the burden from vulnerable individuals experiencing potentially unlawful conduct to those responsible for keeping those vulnerable individuals safe. In practice to act compatibly with rights means that any act or decision of a provider will need to be assessed against the Statement of Rights to make sure that it doesn’t limit a right under the Statement of Rights except to the extent that it’s reasonable and demonstrably justifiable.

Another key change in the Bill is the restructure of nominee arrangements. They were previously both in Chapter 1 and Chapter 8. They now just appear in Chapter 1. And the Bill introduces a new model to embed supported decision making across the aged care system. It aims to reinforce older people’s right to make decisions that affect their lives and supports their right to autonomy and self-determination. The new supported framework is intended to ensure that the will and preferences of older people are paramount in decision making and those provisions now include a single concept of supporter rather than distinguishing between a supporter and a representative. They assume that an older person has capacity to make decisions and places responsibility on the formal support network to only act where requested or required and to pay attention to an older person’s will and preferences. 

The provisions recognise an older person’s right to establish that formal support network and what that means is that individuals will need to register their supporter relationships with the system Governor. This is as opposed to the system Governor appointing those individuals. And this is to ensure that there’s consistent operation with state laws while retaining the ability of the aged care system to identify and recognise supporters. It establishes the supported decision making continuum that assumes capacity of an older person and recognises very importantly that capacity is not static. It establishes a requirement for supporters to obtain consent from an older person when they access information or convey decisions made by the older person. And it allows for multiple people to be registered as part of the older person’s formal support network while still acknowledging the role of individuals who’ve been given legal authority to act on behalf of the older person under jurisdictional arrangements. And it also enables an individual who’s been given that kind of legal authority to act without notifying the system Governor in circumstances where immediate action is required.

That concept of representative that was in the Exposure Draft is no longer in the Bill. Instead there’s that single concept of supporter and the system Governor can determine that a registered supporter has authority to make decisions on behalf of a person only in exceptional circumstances and for a limited period.

Another change that we heard a lot of feedback about was criminal penalties. So in the Exposure Draft and there still are statutory duties on registered providers and responsible persons of registered providers and they previously proposed criminal penalties for breaches of those duties. Some stakeholders thought that the responsible person duty and related criminal penalties were unnecessary and could discourage suitably qualified and experienced people from participating in governance positions. So the responsible person duty is now limited to certain responsible persons. This addresses a material concern by carving out middle management and nursing management from liability for a failure to exercise due diligence. And we also heard concerns that the duty may inadvertently cover every instance an older person requires inpatient treatment at a hospital. So the definition of ‘serious injury or illness’ in the Bill does not reference hospital admission. The Bill also enables the rules to specify matters specific to the aged care context that might constitute a serious injury or illness, for example things like pressure injuries or dehydration.

The primary change though is that the strict liability and fault based criminal offences have been replaced with civil penalties. They increase in severity for serious failure to comply with a duty which has a maximum of 150 penalty units for an individual and 1,000 penalty units for an organisation. And a serious failure to comply with a duty that results in death, serious injury or illness which has a maximum of 500 penalty units for an individual or 4,800 for an organisation. The ability for the Aged Care Quality and Safety Commissioner or an individual to apply to a court for an order of compensation is now linked to circumstances where on the balance of probabilities a provider is found to have breached their duty not to cause adverse effects to the health and safety of individuals to whom the provider is delivering funded aged care services.

There’s also the new chapter on funding of aged care services. So that gives effect to the Aged Care Taskforce’s recommendations. It sets out arrangements for funding of funded aged care services including what the Commonwealth will pay and what an individual can be asked to pay based on a means test. It outlines when Commonwealth funding will be subsidy or grant based and whether the funding is to be directed towards specialist aged care programs. It outlines the subsidy components that are based on an individual’s needs. They’re called person-centred subsidies. And those that are based on a registered provider’s fixed costs which are called provider-based subsidies. And it gives effect to Support at Home funding arrangements including funding for assistive technology and home modifications, end of life and restorative care. Chapter 4 also contains provisions about registered providers entering into accommodation agreements with people, charging accommodation payments and accommodation contributions and the management of refundable accommodation deposits. And it’s a condition of registration that a provider complies with all of these requirements.

And finally independence of the Complaints Commissioner was another aspect of the Exposure Draft that we heard a lot of feedback about. The Exposure Draft proposed that the new Aged Care Complaints Commissioner would be an SES officer within the Aged Care Quality and Safety Commission. Feedback indicated that the Complaints Commissioner should be independent of the Aged Care Quality and Safety Commissioner. And we’ve addressed that feedback by providing that the Complaints Commissioner is a Ministerially appointed position who will be given the complaints functions previously held by the Aged Care Quality and Safety Commissioner.

So some further changes have been made to allow the Complaints Commissioner to use the regulatory powers necessary to perform the complaints functions. And although the Complaints Commissioner will be a separate statutory appointment they will sit within the Aged Care Quality and Safety Commission.

And finally the Aged Care Quality and Safety Commissioner will remain the statutory head of the Commission and the accountable authority for the purposes of the Public Governance, Performance and Accountability Act. Thank you. I’ll hand back to you Michael.

Michael Lye:

Thanks Mel. All right. Well that concludes the webinar. A common question from you in the audience as well as individual specific questions is can we make available the slides that we’ve used in the presentation today. And the answer to that is yes. We’ll post that on the website after the webinar. Remember that I said at the start we’re also recording this webinar and it will be available in coming days. And we have received lots of questions from you and we are grateful for that. We will be producing an FAQ and then as I said at the start look out on our website and register for those more specific webinars that are coming where you can ask those questions.

The other thing I just wanted to say before closing is that aged care reform is underpinned by a suite of modern and scalable digital solutions and for those interested in being part of the journey to digitally transform aged care we encourage you to join our digital transformation sector partner group and come along to our six weekly Tech Talks. If you visit the Department’s website which is on the screen and search for ‘Digital transformation’ you can get some more information on that.

Finally when the webinar finishes a short survey will pop up in your browser and it takes about one minute to answer three questions and we’d appreciate it if you could take a moment to help us improve our webinars in the future. So thanks very much for joining us today. Apologies to those who might have had some audio issues at the start of the proceedings. And we look forward to talking to you in more detail about each aspect of the aged care reforms that have begun. Thank you.

[Closing visual of slide with text saying ‘More information’, ‘Visit the department’s website:’, ‘www.health.gov.au/aged-care-act’, ‘www.health.gov.au/committees-and-groups/aged-care-taskforce’, ‘www.health.gov.au/our-work/support-at-home’]

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