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2016-2017-2018-2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY
ALLOCATED PLACES) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the The Hon Ken Wyatt AM, MP
Minister for Senior Australians and Aged Care, and Minister for Indigenous Health)
AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY
ALLOCATED PLACES) BILL 2019
OUTLINE
The Aged Care Amendment (Movement of Provisionally Allocated Places) Bill 2019
(the Bill) amends the Aged Care Act 1997 (the Act) to allow the Secretary of the
Department of Health (or her delegates) to allow approved providers of residential
aged care to move provisionally allocated residential aged care places from one
region to another, within a state or territory.
The Australian Government (the Government) has overarching policy responsibility
for delivery of aged care services across the country, as part of an end-to-end system
covering both residential and in-home aged care. A key policy objective for the
Government is to ensure that residential aged care is available to those older
Australians who require it as quickly as possible, and appropriately allocated to
address local needs.
Approved providers apply for residential aged care places through a process known as
the Aged Care Approvals Round, where places are allocated on a provisional basis
(known as a provisionally allocated place) to a particular region, until such time as
they are able to be operationalised and utilised by a care recipient. Provisionally
allocated places can include those forming part of an aged care facility that is yet to be
built, or is currently undergoing construction.
Historically, based on an incorrect interpretation of the Act, but otherwise consistent
with policy intent, the Department of Health (the department) has considered
applications for the movement of provisionally allocated places between regions. It
has recently come to light that the Act does not permit a variation of the region to
which residential aged care places are provisionally allocated.
To remedy this issue, the Government is seeking power under the Act to allow the
Secretary of the department (or her delegates) to permit approved providers to move
previously provisionally allocated places from one determined region to another. It is
in the interests of the community for the Act to allow these movements to occur where
a provider can demonstrate that the movement is in the interests of aged care
consumers and there is a clear need for places in the new region. The department is
not seeking the power to move provisionally allocated places from one State or
Territory to another.
This amendment will ensure that legislation aligns with the current practice in relation
to the movement of places.
Financial Impact Statement
There is no financial impact for the Australian Government by the proposed
amendments.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY
ALLOCATED PLACES) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Aged Care Amendment (Movement of Provisionally Allocated Places) Bill 2019
(the Bill) amends the Aged Care Act 1997 (the Act) to allow the Secretary of the
Department of Health (or her delegates) to allow approved providers of residential
aged care to move provisionally allocated residential aged care places from one
region to another, within a state or territory.
In line with the Government's commitment to ensuring ease of access and better
quality of care for consumers of aged care services in Australia, it is in the best
interests of older Australians for residential aged care places to become operational
as quickly as possible. As such, it is important for the Act to allow provisionally
allocated places to be moved from one region to another, where a provider can
demonstrate that the movement is in the interests of aged care consumers, there is a
clear need for places in the new region, and is not detrimental to the region the
provisionally allocated places are currently allocated to.
Human rights implications
The Bill engages the following human rights as contained in article 11and article
12(1) of the International Convention on Economic, Social and Cultural Rights and
articles 25 and 28 of the Convention of the Rights of Persons with Disabilities:
the right to the enjoyment of the highest attainable standard of physical and
mental health; and
the right to an adequate standard of living, including with respect to food and
housing.
The UN Committee on Economic Social and Cultural Rights (the Committee) has
stated that the right to health is not a right for each individual to be healthy, but is a
right to a system of health protection which provides equality of opportunity for
people to enjoy the highest attainable level of health.
As facilitated by this Bill, the movement of provisionally allocated places to another
region will improve the time within which the place is able to operationalise, so that
older Australians can access the aged care services they need, when they need them.
Residential aged care affords residents access to structured health care to suit their
individual needs, as well as a home that is safe and secure, and provides appropriate
food and activities to support social and mental health. These elements are regulated
through quality and safety mechanisms to enforce the rights of care recipients to
enjoy the highest attainable standards of physical and mental health and an adequate
standard of living.
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Conclusion
The Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011 as it promotes the human right to the enjoyment of the highest
attainable standard of physical and mental health and, the right to an adequate
standard of living, including with respect to food and housing.
The Hon Ken Wyatt AM, MP, Minister for Senior Australians and Aged Care,
and the Minister for Indigenous Health
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AGED CARE AMENDMENT (MOVEMENT OF PROVISIONALLY
ALLOCATED PLACES) BILL 2019
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides for the short title of the Act to be the Aged Care Amendment
(Movement of Provisionally Allocated Places) Act 2019.
Clause 2 - Commencement
This clause provides that the Bill will commence on, or is taken to have commenced
on, the day after this Act receives the Royal Assent.
Clause 3 - Schedule
This clause provides that any Act that is specified in a Schedule to this Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms. This is a technical provision which
gives operational effect to the amendments contained in the Schedule. Schedule 1
amends the Aged Care Act 1997 (the Act).
SCHEDULE 1 -- AMENDMENT TO THE AGED CARE ACT 1997
Item 1 - At the end of subsection 15-5(2)
This item adds an additional clause to subsection 15-5(2) which enables a variation to
a provisional allocation which will allow the place to be moved to another region
within the same state or territory. The place cannot be moved outside of the state or
territory to which it was originally allocated.
As a result of this amendment, approved providers will be able to apply to the
Department of Health to vary a provisional allocation to enable them to operationalise
the place and deliver aged care services to older Australians in a different region to
where they were originally allocated, as made under section 14-1(1) of the Act.
The amendment will allow approved providers to operationalise a residential aged
care place more quickly, as the basis for an application to move a place is generally
that they have been unable to operationalise it in its current location and it is therefore
not is use.
In line with the Government's commitment to ensuring ease of access and better
quality of care for consumers of aged care services in Australia, it is in the best
interests of older Australians for residential aged care places to become operational
as quickly as possible. As such, it is important for the Act to allow provisionally
allocated places to be moved from one region to another, where a provider can
demonstrate that the movement is in the interests of aged care consumers, there is a
clear need for places in the new region, and is not detrimental to the region the
provisionally allocated places are currently allocated to.
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Item 2 - Subsection 15-5(7)
This item adds additional wording to identify that variations to reduce the number of
provisionally allocated places (subsection 15-5(2)(a)) or vary the conditions of
allocation for a provisionally allocated place (subsection 15-5(2)(b)) are subject to the
matters specified in the Allocation Principles. The new subsection 15-5(8) will then
outline the specific considerations with respect to 15-5(2)(c).
The amendment makes clear where the legislation specifies the considerations that the
Secretary (or her delegate) must have regard to when making decisions with respect to
section 15-5(2).
Item 3 - At the end of section 15-5
This item adds an additional clause to subsection 15-5 which will specify the
considerations that the Secretary (or her delegate) must be satisfied have been met
when making a decision under section 15-5(2)(c).
As part of the process for allocating residential aged care places, the particular aged
care needs of each planning region are considered with respect to factors such as
population growth, current operational places, and the number of places still to
become operational. This then informs the number of places allocated to a particular
region, and the most appropriate providers, to meet the identified care needs.
As such, when applying to change the region to which a provisionally allocated
residential care place has been allocated, the approved provider must be able to
adequately demonstrate that the move will appropriately meet the needs of the new
region.
In addition, providers need to be able to justify the financial viability and
sustainability of the service in the new region, as well as the impact the move will
have on the timeframes attached to the place when it was first allocated.
In order to approve a variation to the region of a provisionally allocated place, the
Secretary (or her delegate) must consider the factors outlined in the new sub-section
15-5(8) and be satisfied that they have been appropriately met.
Item 4 - After section 15-5
This item adds an additional clause which outlines the circumstances where the
Secretary (or her delegate) is able to approve, or reject, a variation of the region of a
provisionally allocated place, where it would result in the movement of that place to a
service with Extra Service Status (ESS).
ESS in residential aged care involves the provision of additional hotel type services,
including a higher standard of accommodation, food and services than the average
provided by residential aged care homes which do not have ESS. Residents are
required to pay an additional fee for these services, but it does not mean that they
receive a higher level of care - providers have to meet designated care standards for
all residents.
ESS is granted to the provider and not the residential aged care place. As such, when
a place moves from one service to another in a different region it no longer holds ESS.
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If the new service has been granted ESS, the service is able to apply for a variation
that would enable them to make that an ESS place.
Item 5 - Section 31-3
This item amends the existing title of section 31-3 to ensure this clause applies to the
variation of the region of a provisionally allocated place, where it would result in the
movement of that place to a service with ESS. This is important as clause 31-3 is
referenced in the new section 15-5A.
Item 6 - After subsection 31-3(1)
This item adds a new clause which relates to the variation of the region of a
provisionally allocated place, where it would result in the movement of that place to a
service with ESS, and links with Item 5 above.
The new section 31-3(1A) outlines the circumstances where a variation to the region
of a provisionally allocated place may occur, but states that once moved, under this
clause, they are taken not to have ESS.
Item 7 - Application of amendment
This item adds a new clause which states that the amendments of this Bill apply to
variations of the region to which a provisionally allocated place was allocated when
made after the commencement of this particular amendment. This is irrespective of
whether the places themselves were allocated before or after this particular
amendment.
Variations to the region of a provisionally allocated place which were approved prior
to this commencement of this amendment were made in good faith and do not need to
be validated, as the rights or interests of approved providers (or other persons) have
not been, or will not in future be, adversely affected by the relevant decisions. As
such, the amendments put forward in this Bill are not pertinent to these particular
variations.
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