Attachment A

 

Details of the Financial Framework (Supplementary Powers) Amendment 

(Health and Aged Care Measures No. 2) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health and Aged Care Measures No. 2) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds two new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities to be administered by the Department of Health and Aged Care (the department).

 

New table item 614 establishes legislative authority for government spending on the Workplace Advisory Services Program (WAS program). The WAS program aims to continue providing support for aged care providers facing workforce challenges, including in relation to attracting, retaining and training workforce members.

 

The WAS program is part of a suite of programs which targets aged care providers with financial viability concerns, are strategically important, or require support to improve business capability and operations, particularly in regional and remote areas. The package received funding of $98.7 million over two years from 2023-24 in the 2023-24 Budget for:

• the establishment of the Market Adjustment Program to support business sales and/or transfers, or continued operations in times of financial crisis;
• an expansion of the Service Development and Assistant Panel to assist providers facing viability risk in regional and remote communities; and
• the continuation of the advisory services, encompassing Business Advisory Service and the WAS program which offer free and more detailed advice to support business improvements and reform implementation.

 

Legislative authority through table item 614 is required to support the WAS program.

 

The WAS program was established in 2021 to provide free, independent, and confidential workforce advice on management, strategies, operations and workforce planning to residential and home care service providers (providers). Price Waterhouse Coopers (PWC) is currently engaged to administer both the WAS program and the Business Advisory Service. They are currently paid a retainer and then a fee for assessing an application, followed by another fee when they complete their engagement with an eligible provider under the WAS program.

 

The WAS program is implemented in two tiers of services:

• Tier 1 services, which are delivered through a desktop review and involve a virtual meeting where applicants work with PWC on workforce issues they are facing; and
• Tier 2 services, which are delivered by both desktop review and on site at the provider's premises and involve a more detailed and intensive review of provider operations, including site visits. These generally focus on a geographic region where multiple providers face similar workforce issues.

 

Advice by PWC in both Tier 1 and Tier 2 services are used to address several key areas of focus, including attraction and recruitment, engagement and retention, performance and accountability, workforce culture, data and analytics and learning and development. Since commencement, over 500 providers have received support through these programs with 47 per cent of providers having had an improvement in their operating result.

 

Specifically, the WAS program helps providers by:

• providing insights and practical solutions (including tools and templates) for the specific issues aged care providers are facing in relation to workforce, recruitment and retention;
• identifying and sharing industry better practices to improve capacity and capability across the industry;
• supporting the improvement of skills and training delivery by providers to improve the quality of care being delivered (beyond mandatory training); and
• assisting providers to identify strategies in relation to ongoing professional development and career pathways for clinical and care staff.

 

As the aged care sector continues to experience significant operating losses, alongside substantial reform and market adjustment, an extension of the WAS program beyond 30 June 2023 to provide eligible aged care providers with extended capability support and viability funding, particularly regional and remote providers is required.

 

Funding of $3.0 million over two years from 2023-24 is intended to fund 135 Tier 1 services (offered to any approved aged care provider not owned by State or Territory Government) and 10 Tier 2 services (in instances where a need has been identified for professional assistance over and above that offered in Tier 1, such as a particular region where a number of providers are facing similar workforce issues).

 

The department will procure a service provider to deliver the WAS program in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) and the department's Accountable Authority Instructions. A range of procurement methods may be used such as open and limited tenders or procurements under existing arrangements. The selection of which procurement method to use will depend on the activity.

 

Final spending decisions will be made by the Secretary of the department or an appropriate delegate, the Assistant Secretary, Aged Care Workforce Branch. The Secretary's delegate is qualified to perform the function as they have expert knowledge of the program as a result of performing the roles and responsibilities of the position of Assistant Secretary of the Aged Care Workforce Branch. This position is directly responsible for the WAS program and also has the requisite financial delegations under the PGPA Act.

 

The department will procure the following services:

• confidential advice for residential aged care providers, such as:
• developing workforce training and skills plans;
• strategies to attract and retain workers;
• supporting existing workers through opportunities for responsive employment arrangements;
• undertaking diagnostics to identify how to better manage human resources;
• data analysis to better understand their worker base;
• identifying supports that are available to increase the skills of the workforce;
• electronic application form; and
• data provision and monthly reporting to the department.

 

The department will:

• manage all contracts for the above services;
• facilitate escalation and referral process from the application process and shared mailbox; and
• report on performance of the service and evaluate the WAS program.

 

Procurement decisions will be made in accordance with the Commonwealth resource management framework, including the PGPA Act and the CPRs. The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

Funding decisions in relation to the WAS program will not be subject to independent merits review as such decisions are automatic or mandatory in nature. The decision to make a payment by a departmental official will be very limited and procedural (for example, confirming the claimant's status as a non-State or Territory owned aged care provider). The Administrative Review Council (ARC) has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 3.8 to 3.11 of the guide, 'What decisions should be subject to merit review?' (ARC guide)).

 

The department has consulted across its various agencies on the extension of the WAS program, including with the Department of the Prime Minister and Cabinet and the Department of Finance. Demand for the service continues and the WAS program is a critical component of the broader aged care viability services offered as part of the 2023-24 Budget. The Aged Care Workforce Industry Council was consulted on the design and development in the program in 2021. Feedback provided to PWC by aged care providers on services provided as part of the WAS program has been included within the monthly reports issued to the department, ensuring that services are appropriately targeted and that providers benefit from their engagement in the program.

 

Funding of $98.7 million for the package, which includes $3.0 million for the WAS program is included in the 2023-24 Budget under the measure 'Improving Aged Care Support' for a period of two years commencing in 2023-24. Details are set out in Budget 2023-24, Budget Measures, Budget Paper No. 2 at page 134.

 

Funding for this item will come from Program 3.3: Aged Care Quality, which is part of Outcome 3. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related paper 1.9, Health and Aged Care Portfolio at page 97.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

• the communications power (section 51(v));
• the bankruptcy and insolvency power (section 51(xvii));
• the social welfare power (section 51(xxiiiA)); and
• the external affairs power (section 51(xxix)).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

The WAS program will deliver advisory services including financial, professional, business and human relations related by telephone and internet, particularly when conducting a desktop review of the provider's services and operations.

 

Bankruptcy and insolvency power

 

Section 51(xvii) of the Constitution empowers the Parliament to make laws with respect to 'bankruptcy and insolvency'.

 

The WAS program will be targeted, in part, to providers with financial viability concerns and therefore will assist providers who are insolvent or close to becoming insolvent. While services under the program are not exclusively offered to aged care providers facing bankruptcy or insolvency, aged care providers in this situation would often benefit from improving their approach to workforce attraction and development. It is intended that such advice will help improve the viability of aged care services and reduce the likelihood of providers becoming insolvent or close to insolvent. This is particularly important with the Tier 2 services, which generally target geographic regions where multiple providers may be facing similar workforce issues. Bringing together all providers, including those which are currently doing well, is intended to assist the providers most in need.

 

Social welfare power

 

Section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including medical services.

 

The WAS program is designed to enhance the viability of aged care providers and in turn will contribute to their ongoing ability to deliver sickness benefits in the form of aged care services and medical services, to their residents. The WAS program supports this by assisting providers to attract and retain staff and ensure those staff have adequate skills to meet the needs of the older Australians in their care.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's international obligations under treaties to which it is a party.

 

International Covenant on Economic, Social and Cultural Rights [1976] ATS

 

Australia has the following international obligations as a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). States Parties to the ICESCR are required to take steps with a view to achieving progressively the full realisation of the rights recognised in the Covenant by all appropriate means (Art 2(1)).

 

The steps to be taken by States Parties to achieve the full realisation of the right to enjoyment of the highest attainable standard of physical and mental health (as required by Art 12(1)) are specified in Art 12(2) and include steps necessary for 'the creation of conditions which would assure to all medical service and medical attention in the event of sickness' (Art 12(2)(d)).

 

The WAS program supports the viability of providers (through support targeting finances, professional services, and business advice and workplace challenges) and in turn enhances medical services in the event of sickness.

 

New table item 615 establishes legislative authority for government spending on the Electronic prescribing system (the program) to secure and sustain the electronic prescription delivery infrastructure and services.

 

The prescribing exchange services are currently funded through payments to community pharmacies, that flow to medical software providers. The digital prescription exchange model has been in operation for over a decade (originally proposed in the National e-Health Strategy 2008). The service has become a core enabler of Australia's health system, but the funding model does not provide the controls expected by the community for a service of this importance.

 

The prescription exchanges are a central component of electronic prescribing. They enabled the rollout of electronic prescribing within two months at the start of the pandemic. They also support medicine charts in aged care facilities, which directly address recommendations of the Royal Commission into Aged Care.

The program aims to deliver a stable and sustainable prescription exchange service through a direct funding model, expand the use of electronic medication charts into new settings and mandate the use of electronic prescribing for high risk and high value medicines.

 

Funding will go towards:

• software, infrastructure and services to exchange prescription information between clinics and care settings, including mandating regulatory requirements;
• engagement with industry and jurisdiction governments, including support to facilitate changes in clinics and to related clinical software; and
• related activities to inform implementation approaches, encourage adoption and navigate change across health and care settings to improve medicine information capture and exchange.

 

The program will enable broader improvements to prescribing services. For example, connections to state and territory hospitals can develop further, linking electronic prescriptions from hospitals into community pharmacies. This will enable a patient's medications information to follow them between different care settings.

 

Change and adoption activities will be needed to support changes to be implemented flowing from the procurement of the prescription exchange service.

 

The program will be delivered through an open tender process in accordance with the Commonwealth resource management framework, including the PGPA Act and the CPRs. The department will provide an opportunity for suppliers and tenderers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au) once the contracts are signed. Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations.

 

The delegate of the Secretary of the department, the First Assistant Secretary, Medicare Benefits and Digital Health Division, will be the final decision maker for procurement decisions. Under the PGPA Act and the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) the Accountable Authority (the Secretary of the department) has been provided with a range of powers, functions and duties. Another source of powers, functions and duties comes from the delegations made by the Minister for Finance to the Accountable Authority in accordance with the Financial Framework (Supplementary Powers) Act 1997.

 

Funding decisions in relation to the program will not be subject to independent merits review as they are decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met. The ARC has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the ARC guide).

 

The Medicare Benefits and Digital Health Division within the department has consulted extensively both internally and externally on the future of prescription exchange services, best fit funding and operating models, and the procurement process.

 

Regarding external engagement, the department engaged the Boston Consulting Group to conduct research and consult widely to understand industry drivers and identify viable options for future funding and operating models. The department also released an open request for information in 2021 to provide industry participants and bodies the opportunity to comment on models under consideration to inform the subsequent request for tender.

 

Funding of $111.8 million for the program is included in the 2023-24 Budget under the measure 'Reducing Patient Costs and Improving Services through Community Pharmacies' for a period of four years commencing in 2023-24 (and $24.2 million ongoing). Details are set out in Budget 2023-24, Budget Measures, Budget Paper No. 2 at pages 145.

 

Funding for this item will come from Program 2.3: Pharmaceutical Benefits, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2023-24, Budget Related paper 1.9 Health and Aged Care Portfolio at page 80.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

• the social welfare power (section 51(xxiiiA)); and
• the communications power (section 51(v)).

 

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including 'pharmaceutical benefits'.

 

The program seeks to improve the provision of medicine information capture and exchange in relation to the pharmaceutical wants of identified or identifiable individuals (the recipients of the Pharmaceutical Benefits Scheme medicine).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

The program seeks to secure and sustain the digital infrastructure over which electronic prescribing would be managed.

 

Attachment B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Health and Aged Care Measures No. 2) Regulations 2022

 

This disallowable legislative instrument 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 legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Health and Aged Care Measures No. 2) Regulations 2023 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Health and Aged Care.

 

This disallowable legislative instrument adds the following table items to Part 4 of Schedule 1AB:

*         table item 614 'Workforce Advisory Services Program'; and

*         table item 615 'Electronic prescribing system'.

 

Table item 614 - Workforce Advisory Services Program

 

Table item 614 establishes legislative authority for government spending on the Workplace Advisory Services Program (WAS program).

 

The WAS program was established in 2021 to provide free, independent, and confidential workforce advice on management, strategies, operations and workforce planning to residential and home care service providers (providers). The WAS program is implemented in two tiers of service: Tier 1 services which are delivered through a desktop review and Tier 2 services which are delivered by both desktop review and on site at the provider's premises.

 

The WAS program helps providers by:

• providing insights and practical solutions (including tools and templates) for the specific issues aged care providers are facing in relation to workforce, recruitment and retention;
• identifying and sharing industry better practices to improve capacity and capability across the industry;
• supporting the improvement of skills and training delivery by providers to improve the quality of care being delivered (beyond mandatory training); and
• assisting providers identify strategies in relation to ongoing professional development and career pathways for clinical and care staff.

 

Funding of $3.0 million over two years from 2023-24 is intended to fund 135 Tier 1 services (offered to any approved aged care provider not owned by State or Territory Government) and 10 Tier 2 services (in instances where a need has been identified for professional assistance over and above that offered in Tier 1, such as a particular region where a number of providers are facing similar workforce issues).

 

Human rights implications

 

Table item 614 engages the following human rights:

*         the right of everyone to the enjoyment of the highest attainable standard of physical and mental health - Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;

*         the right of persons with disabilities to be protected from all forms of exploitation, violence and abuse - Article 16 of the Convention on the Rights of Persons with Disabilities (CRPD), read with Article 4; and

*         the right of persons with disability to live independently and be included in the community - Article 19 of the CPRD.

 

Right of everyone to the enjoyment of the highest attainable standard of physical and mental health

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to guarantee the rights recognised in the Covenant to be exercised without discrimination of any kind, including race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Article 12 of the ICESCR recognises the right of everyone to the highest attainable standard of physical and mental health and outlines the steps to be taken by States Parties to achieve the full realisation of this right which include among others: the prevention, treatment and control of epidemic, endemic, occupational and other diseases.

 

The WAS program positively impacts these rights by allowing Australians to age in their communities by ensuring aged care services are adequately staffed by aged care workers with the appropriate skills.

 

Right of persons with disabilities to be protected from all forms of exploitation, violence, and abuse

 

Article 4 of the CRPD requires States Parties to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.

 

Article 16 of the CRPD provides that States Parties shall take all appropriate measures to protect persons with disabilities from all forms of exploitation, violence and abuse, including their gender-based aspects.

 

The WAS program positively impacts these rights by ensuring that aged care facilities are able to implement best practice when addressing workforce matters, resulting in older Australians accessing the highest quality care to older Australians.

 

Right of person with disabilities to live independently and be included in the community

 

Article 19 of the CRPD provides that States Parties recognise the equal right of all persons with disabilities to live in the community and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right.

 

The WAS program positively impacts these rights by ensuring ageing Australians can access high quality aged care services and remain in their communities as long as possible.

 

Conclusion

 

Table item 614 is compatible with human rights because it promotes the protection of human rights.

 

Table item 615 - Electronic prescribing system

 

Table item 615 establishes legislative authority for government spending on the Electronic prescribing system program (the program) to secure and sustain the electronic-prescription delivery infrastructure and services. These services have been operating for over a decade and are critical to enabling health care for everyone in our community.

 

The program aims to deliver a stable and sustainable prescription exchange service through a direct funding model, expand the use of electronic medication charts into new settings and mandate the use of electronic prescribing for high risk and high value medicines.

 

The program will provide $111.8 million over four years from 2023-24 towards:

*         software, infrastructure and services to exchange prescription information between clinics and care settings, including mandating regulatory requirements;

*         engagement with industry and jurisdiction governments, including support to facilitate changes in clinics and to related clinical software; and

*         related activities to inform implementation approaches, encourage adoption and navigate change across health and care settings to improve medicine information capture and exchange.

 

 

Human rights implications

 

Table item 615 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 615 is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance