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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE AMENDMENT (IMPLEMENTING CARE REFORM) BILL
2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care,
the Hon Anika Wells MP)
AGED CARE AMENDMENT (IMPLEMENTING CARE REFORM) BILL
2022
OUTLINE
The Aged Care Amendment (Implementing Care Reform) Bill 2022 will amend the
Aged Care Act 1997 (Aged Care Act) to implement a series of urgent measures that will
give older Australians the dignity and respect they deserve.
These amendments are intended to enable meaningful, practical improvements to the
delivery of aged care services and to provide greater oversight and understanding of
what funds are being used for. These measures put the quality of care and safety of
older Australians first.
Amendments relating to registered nurses
Schedule 1 to the Bill establishes a new responsibility in the Aged Care Act for
approved providers of residential care and certain kinds of flexible care (as specified in
the Quality of Care Principles 2014 (Quality of Care Principles)) to ensure that a
registered nurse (within the meaning of the Health Insurance Act 1973) is on site and
on duty at all times (that is, 24 hours each day, 7 days each week) at each residential
facility operated by them.
The new responsibility will complement existing approved provider responsibilities in
the aged care legislation, including maintaining an adequate number of appropriately
skilled staff to ensure the care needs of care recipients are met, and to provide such care
and services as are specified in the Quality of Care Principles.
Amendments relating to capping home care charges
Schedule 2 to the Bill introduces a new power into the Aged Care Act that will enable
the Government to cap charges that approved providers of home care (home care
providers) may charge care recipients. It also removes the home care providers' ability
to charge exit amounts. These amendments will increase consumer transparency and
will ensure more funds are available to meet the direct needs of care recipients.
Amendments relating to transparency of information
Schedule 3 to the Bill introduces a mandatory requirement into the Aged Care Act for
the Secretary of the Department of Health and Aged Care to publish information in
relation to aged care services, including information about approved providers of those
aged care services, in accordance with the Information Principles 2014. The Schedule
will allow the information to be published. It is intended that this information will be
published in a format that is clear and able to be understood by the public. It will
increase transparency and accountability of the aged care sector and empower older
Australians and their families to make more informed care decisions based on this
information.
1
Financial Impact Statement
MEASURE INDICATIVE FINANCIAL IMPACT OVER THE
FORWARD ESTIMATES
Schedule 1 $450.7 million
Schedule 2 $1.2 million
Schedule 3 $8.1 million
The Bill's total indicative financial impact is a cost of $460.0 million over forward
estimates.
Regulation Impact Statement
In respect to Schedule 1 to the Bill, consistent with the Office of Best Practice
Regulation's Regulatory Impact Statement (RIS) requirements, the Department of
Health and Aged Care certified that an independent review undertook a process and
analysis equivalent to a RIS (Reference OBPR 22-02547). A supplementary regulatory
impact analysis that complements the certification has also been completed. The
certification, details of the review, and supplementary regulatory impact analysis are
available at the end of this explanatory memorandum.
In respect to Schedules 2 and 3 to the Bill the Office of Best Practice Regulation
assessed these amendments as non-regulatory (Reference OBPR 22-02577 and
OBPR 22-02496).
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AGED CARE AMENDMENT (IMPLEMENTING CARE REFORM) BILL
2022
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 purpose of the Aged Care Amendment (Implementing Care Reform) Bill 2022 is
to amend the Aged Care Act 1997 (Aged Care Act) to effect meaningful changes to the
delivery of aged care services and the means for care recipients and their families to
assess the relative quality of service delivery by care providers and at individual care
facilities.
Schedule 1 - Registered nurses
Schedule 1 to the Bill creates a new responsibility in the Aged Care Act for approved
providers of residential care and certain kinds of flexible care (as specified in the
Quality of Care Principles) to have a registered nurse (within the meaning of the Health
Insurance Act 1973) on site and on duty at all times (that is, 24 hours each day, 7 days
each week) at each residential facility they operate.
The new responsibility will complement existing approved provider responsibilities in
aged care legislation, including maintaining an adequate number of appropriately
skilled staff to ensure the care needs of care recipients are met, and to provide such care
and services as are specified in the Quality of Care Principles.
Schedule 2 - Capping home care charges
Schedule 2 to the Bill will amend the Aged Care Act to introduce a power that will
enable the Government to cap the charges that approved providers of home care (home
care providers) can charge care recipients and remove home care providers' ability to
charge exit amounts.
The amendments will also allow for the User Rights Principles 2014 to specify
requirements in relation to the prices charged by home care providers for, or in
connection with, the provision of care or services to the care recipient. The amendments
will enable the Government to increase transparency and ensure more funds are
available to meet the direct care needs of care recipients.
Schedule 3 - Transparency of information
The amendments in Schedule 3 to the Bill provide that the Secretary of the Department
of Health and Aged Care must publish information relating to aged care services,
including approved providers of those aged care services, as specified in the
Information Principles 2014. This will increase transparency and accountability, help
older Australians and their families to understand key details of a provider's operations,
and empower older Australians to make more informed care choices.
3
Human rights implications
Schedule 1 - Registered nurses
Schedule 1 to the Bill engages the right to health in article 12 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and article 25 of the
Convention on the Rights of Persons with Disabilities (CRPD).
Right to health
These articles refer to the right of individuals, including persons with disability, to the
highest attainable standard of physical and mental health. Schedule 1 promotes the right
to health by explicitly requiring and strengthening the obligation for quality health
services to be made available to care recipients of residential care at all times.
Schedule 2 - Capping home care charges
Schedule 2 to the Bill engages the following human rights:
• the right to health in article 12 of the ICESCR and article 25 of the CRPD; and
• the right to an adequate standard of living and social protection in article 28 of
the CRPD;
Right to health
The right to health is contained under article 12 of the ICESCR and article 25 of the
CRPD. These articles refer to the right of individuals, including persons with disability,
to the highest attainable standard of physical and mental health.
The Government recognises that older people want to remain living in their own home
for as long as possible and may need to receive care to do so. As such, the Government
subsidises in-home aged care to provide comprehensive home care that can improve
older Australians' quality of life and help them remain active and connected to their
communities.
This involves the payment of subsidy to approved providers for the provision of care
and services to people with a condition of frailty or disability who require assistance to
achieve and maintain the highest attainable standard of physical and mental health.
Schedule 2 to the Bill further promotes the right to health by maximising funds available
to address care recipients' direct care needs in receiving in-home aged care services.
Right to an adequate standard of living and social protection
The right to an adequate standard of living and social protection is contained under
article 28 of the CRPD. This article refers to the right of individuals, including persons
with disability, to an adequate standard of living for themselves and their families, and
to the continuous improvement of living conditions. The commitment to this right
safeguards and promotes people's right to live without discrimination on the basis of
disability.
Schedule 2 to the Bill positively engages the rights for persons with disabilities set out
in article 28 of the CRPD, by providing genuine consumer direction of care.
Schedule 2 will improve transparency over the actual use of home care subsidy by
enabling the Government to cap costs that can be charged to care recipients under the
Home Care Packages Program.
4
Schedule 3 - Transparency of information
Schedule 3 to the Bill engages the following rights:
• the right to access information in article 21 of the CRPD;
• The right to the enjoyment of the highest attainable standard of physical and
mental health in article 12(1) of the ICESCR; and
• the right to privacy in article 17 of the International Covenant on Civil and
Political Rights (ICCPR) and article 22 of the CRPD.
Right to access information
The right to access information is contained in article 21 of the CRPD, which provides
that appropriate measures should be taken to ensure people with disabilities can exercise
their right to freedom of expression and opinion, including providing information in
accessible formats, in a timely manner, without additional cost.
Schedule 3 to the Bill will promote the right to access information by requiring the
Secretary of the Department of Health and Aged Care to publish information about aged
care services and providers. This information will be made publicly available. It will
provide older Australians, who may have impediments to their full and effective
participation in society, and their families with clear, timely and meaningful
information about aged care services and approved providers.
Right to Health
The right to health is contained in article 12(1) of the ICESCR, which provides that
parties to the ICESCR should take measures to ensure enjoyment for everyone of the
highest attainable standard of physical and mental health.
Schedule 3 to the Bill will promote the right to health by requiring the Secretary to
publish information about aged care services and approved providers. This information
will empower older Australians and their families to make more informed care
decisions, which will support better care outcomes.
Right to privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence, nor to unlawful
attacks on his or her honour or reputation, and that everyone has the right to the
protection of the law against such interference or attacks. Article 22 of the CRPD
outlines a similar right. Although the United Nations Human Rights Committee has not
defined 'privacy', it should be understood to comprise freedom from unwarranted and
unreasonable intrusions into activities that society recognises as falling within the
sphere of individual autonomy.
Schedule 3 to the Bill limits the right to privacy under article 17 of the ICCPR requiring
the Secretary to publish specified information about aged care services and approved
providers. This information must not include personal information about an individual,
other than an individual who is one of the key personnel of an approved provider.
The right to privacy under article 17 can be permissibly limited to achieve a legitimate
objective and where the limitations are lawful and not arbitrary. The term 'unlawful' in
article 17 of the ICCPR means that no interference can take place except as authorised
under domestic law. Additionally, the term 'arbitrary' in article 17(1) of the ICCPR
5
means that any interference with privacy must be in accordance with the provisions,
aims and objectives of the ICCPR and should be reasonable in the particular
circumstances. The Committee has interpreted 'reasonableness' to mean that any
limitation must be proportionate and necessary in the circumstances.
As recommended by the Royal Commission into Aged Care Quality and Safety, the
identification of the people who are an approved provider's key personnel is vital to
ensure that there is no uncertainty about which people must meet the relevant aged care
regulatory standards. The objective of this provision is to promote accountability,
transparency, and enable proper scrutiny of the approved provider's operations. It will
provide care recipients with knowledge about the people within the approved provider's
organisation that are responsible for executive decisions and planning, directing or
controlling the activities of the approved provider's entity and for the day-to-day
operations of the aged care service and nursing services.
This provision is reasonable, necessary and proportionate to achieving this objective,
noting that the names of members of an approved provider's governing body, are
already available to the public for some approved providers. For example, section 40-5
of the Australian Charities and Not-for-Profits Commission Act 2012 requires the
Australian Charities and Not-for-Profits Commissioner to maintain a register which
include details such as the name of each 'responsible entity' (generally a director of the
registered entity) and the position held by each responsible entity. However, the totality
of information being sought under this measure is not readily and publicly available, in
one place and at no cost, for all approved providers. This limitation on the right to
privacy is therefore legitimate and necessary, and promotes the right to access
information and the right to health.
Conclusion
The Bill is consistent with human rights as it promotes the rights of older Australians.
To the extent that the Bill may limit human rights this is reasonable, necessary and
proportionate to protect the rights of older Australians.
[Circulated by the authority of the Minister for Aged Care,
the Hon Anika Wells MP]
6
AGED CARE AMENDMENT (IMPLEMENTING CARE
REFORM) BILL 2022
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides that the short title of the Act is the Aged Care Amendment
(Implementing Care Reform) Act 2022 (the Act).
Clause 2 - Commencement
Clause 2 provides a table setting out the commencement dates of the various sections
in, and Schedules to, the Act. Sections 1 to 3 of the Bill (and anything in the Act not
elsewhere covered by the commencement table) commences on the day the Act receives
the Royal Assent.
Schedule 1 to the Bill commences on 1 April 2023, Schedule 2 to the Bill commences
on 1 January 2023 and Schedule 3 to the Bill commences on 1 December 2022.
Clause 3 - Schedules
Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Bill has
effect according to its terms. This is a technical provision, which gives operational
effect to the amendments contained in the Bill
7
Schedule 1 - Registered nurses
Overview
Schedule 1 amends Part 4.1 - Quality of Care in the Aged Care Act 1997 (Aged Care
Act) to insert a new responsibility for approved providers of residential care and certain
kinds of flexible care specified in the Quality of Care Principles 2014 (Quality of Care
Principles), to have at least one registered nurse on site and on duty at each residential
facility they operate 24 hours a day, 7 days a week. Enacting this new responsibility
fulfils an election commitment of the Government and responds to Recommendation
86 of the final report of the Royal Commission into Aged Care Quality and Safety
(Royal Commission).
Part 1--Amendments
Aged Care Act 1997
Item 1 - After paragraph 54-1(1)(b)
This item inserts a new paragraph (ba) in subsection 54-1(1) that lists the
responsibilities of approved providers in relation to the quality of aged care that the
approved provider provides. This new paragraph requires compliance with new section
54-1A if that section applies to the approved provider.
Item 2 - After section 54-1
This item inserts a new responsibility into the Aged Care Act relating to registered
nurses (within the meaning of the Health Insurance Act 1973) in new section 54-1A.
This section applies to approved providers of residential care, and the kinds of flexible
care prescribed in the Quality of Care Principles, where an exemption from this section
has not been granted. The responsibility is that an approved provider must ensure at
least one registered nurse is on site and on duty at a residential aged care facility at all
times on and after 1 July 2023.
New subsection 54-1A(3) provides for a mechanism for the granting of exemptions in
the Quality of Care Principles. New subsection 54-1(4) provides that, without limiting
subsection (3), the Quality of Care Principles may provide for:
• the process for the making of applications for the grant of an exemption in
relation to a residential facility
• the circumstances in which an exemption may be granted; and
• the conditions that may apply to such exemptions.
The inclusion of an exemption from the registered nurse responsibility is consistent
with the Recommendation 86 of the Royal Commission. The Royal Commission
recommended that approved providers should be able to apply for an exemption in
certain circumstances, including for residential care facilities that are co-located with a
health service where registered and enrolled nurses are present, and for facilities in
regional, rural and remote areas where the provider has been unable to recruit sufficient
numbers of staff with the requisite skills.
8
The new responsibility will complement existing approved provider responsibilities in
aged care legislation, including maintaining an adequate number of appropriately
skilled staff to ensure the care needs of care recipients are met (paragraph 54-1(1)(b) of
the Aged Care Act) and to provide such care and services as are specified in the Quality
of Care Principles (paragraph 54-1(1)(a) of the Aged Care Act).
9
Schedule 2 - Capping home care charges
Overview
Schedule 2 to the Bill introduces a new power into the Aged Care Act to enable the
Government to cap the prices that approved providers of home care (home care
providers) may charge care recipients and to remove home care providers' ability to
charge exit amounts. This measure will enable the Government to take action to reduce
package funding directed to administration and management and ensure more home
care funds are available to meet the direct care needs of care recipients.
Under the Home Care Packages Program some administration and management costs
are charged separately (for example, care and package management) while some are
built into the unit price of direct care charges (for example, cost of office
accommodation). Approaches to charging differ across home care providers. While
these providers are required to publish their service charges online and provide these to
care recipients, there are no set caps for charges and no effective cap on prices.
Section 56-2 also sets caps on home care fees, which are distinct from the charges being
capped through these amendments. Home care fees are defined at section 52D-2 of the
Aged Care Act. These are already capped through existing aged care legislation. Home
care fees cannot be charged to the home care package under Schedule 3 of the Quality
of Care Principles, and as such are not captured by these amendments.
Aged Care Act 1997
Item 1 - After paragraph 56-2(a)
Item 1 amends section 56-2 of the Aged Care Act (responsibilities of approved
providers - home care), to add new paragraph 56-2(aa), which removes home care
providers' ability to charge a care recipient for ceasing care. Some home care providers
charge exit amounts to cover the administrative costs of ceasing care to a care recipient.
This amendment would eliminate the ability for home care providers to charge for this
separately, and instead encourage approved providers to charge appropriate care and
package management amounts to cover these administration and management costs.
Item 1 also adds new paragraph 56-2(ab), which provides for the User Rights
Principles 2014 to specify requirements in relation to the prices charged by home care
providers for, or in connection with, the provision of care or services to the care
recipient.
Item 2 - Application provisions
Sub-item 2(1) provides that paragraph 56-2(aa) of the Aged Care Act applies in
relation to an approved provider that ceases to provide home care to a care recipient
on or after the commencement of this item.
Sub-item 2(2) provides that paragraph 56-2(ab) applies in relation to care or services
provided on or after the commencement of this item.
10
Schedule 3 - Transparency of information
Overview
Schedule 3 to the Bill amends the Aged Care Act to introduce a requirement for the
Secretary to publish information in relation to aged care services, including approved
providers, as specified in the Information Principles 2014 (Information Principles).
The Royal Commission found that there is a lack of transparency and accountability
about approved providers and that good quality comparative information about aged
care services is not publicly available. This lack of information and transparency has
impacted the ability for older Australians and their families to make informed
judgements about the quality of aged care in particular services, and the accountability
of aged care providers to Australian taxpayers.
This new requirement responds to Recommendation 88 of the final report of the Royal
Commission.
In addition, this measure will also enable the publication of information such as how
much approved providers and aged care services spend on care, nursing, food,
maintenance, cleaning, administration, and profits. This intends to help rebuild trust in
the sector and ensure that residents' and taxpayers' funds are being spent on the care of
older Australians.
This measure allows the Information Principles to specify what information the
Secretary must publish, the way in which it must be published, and when it must be
published.
This provision will require the Secretary to make publicly available information about
aged care services, including about approved providers, which aims to enable older
Australians and their families to better understand key details of aged care approved
providers and/or their services. Specifying the information that the Secretary must
publish in the Information Principles enables the Minister to amend the information to
be published in response to changing circumstances and expectations, based on what is
most valuable to older Australians, their families and other members of the public. The
information to be published is expected to include:
• financial information, including expenditure on care, nursing, food,
maintenance, cleaning, administration, and profits;
• levels of care time provided;
• details of key personnel; and/or
• information about staffing of an aged care service.
Part 1--Amendments
Aged Care Act 1997
Item 1 - In the appropriate position in Division 86
Item 1 inserts new section 86-10 in Division 86 of the Aged Care Act.
11
New section 86-10 requires the Secretary to, in accordance with the Information
Principles, make certain information in relation to aged care services, including
information about the approved providers of those aged care services, publicly
available.
Subsection 86-10(1)
New subsection 86-10(1) provides that the Secretary must, in accordance with the
Information Principles, make publicly available information in relation to aged care
services.
Subsection (1) enables the Information Principles to specify what information must be
made publicly available and how and when it must be made publicly available.
The Information Principles will be amended to provide details of information that the
Secretary must publish, and any other requirements regarding publishing the
information.
• The Government has committed that this will include information on how
much is spent on care, nursing, food, maintenance, cleaning, administration
and profits by approved providers of residential aged care services. This will
enable older Australians to better compare approved providers and their aged
care services.
• The amendment also responds to Recommendation 88 of the Royal
Commission, by requiring publication of specified information about the
affairs of approved providers.
Subsection 86-10(2)
Without limiting subsection 86-10(1), new subsection 86-10(2) sets out certain
matters which may be dealt with by the Information Principles for the purposes of
new section 86-10. This includes information about an aged care service or a specified
class of aged care services (paragraph 86-10(2)(a)) and information about an approved
provider, or a specified class of approved providers (paragraph 86-10(2)(b)). This
allows the Secretary to publish different information about a service type or approved
provider depending on the type of aged care service or approved provider, or other
factors specified in the Information Principles.
New paragraph 86-10(2)(c) provides that the Information Principles may specify the
way in which the Secretary must publish the information, or a class of information.
Information reported by approved providers to the Secretary may be of a technical
nature and difficult to understand without specialist expertise. Therefore, it would be
inappropriate to publish information in its raw form. This paragraph is of high
importance as it will ensure information is published in a form that is simple to
understand and of value to older Australians.
New paragraph 86-10(2)(d) provides that the Information Principles may specify the
period within which the Secretary must publish the information, or a class of
information.
12
Subsection 86-10(3)
New subsection 86-10(3) provides that information made publicly available for the
purposes of new subsection 86-10(1) must not include personal information about an
individual. This excludes an individual who is one of the key personnel of an
approved provider.
As recommended by the Royal Commission, the identification of the people who are
an approved provider's key personnel is vital to ensure that there is no uncertainty about
which people must meet the relevant aged care regulatory standards. The objective of
this provision is to promote accountability, transparency, and enable proper scrutiny of
the operations of aged care services and approved providers of these services. It will
provide care recipients with knowledge about the people within the approved provider's
organisation who are responsible for executive decisions and planning, directing or
controlling the activities of the provider's entity and for the day-to-day operations of
the aged care service and nursing services.
Item 2 - Application
Item 2 provides application arrangements in respect to new section 86-10 of the Aged
Care Act inserted by Item 1. Item 2 provides that new section 86-10 of the Aged Care
Act applies in relation to information whether the information was acquired or created
before, on or after the commencement of this item. This means any information
specified in the Information Principles under Item 1 may be made publicly available
regardless of when it was acquired or created. This aligns with the intent of the
amendments, which aim to improve transparency by expanding the information that
can be made publicly available to better enable older Australians and their families to
make more informed choices about approved providers and their aged care services.
This necessarily includes information that was created or acquired before the
commencement of this provision.
13
Certification of independent reviews
14
15
Attachment A
Independent review for certification of ongoing response to the Royal
Commission into Aged Care (Quality and Safety)
1. Royal Commission into Aged Care Quality and Safety, Counsel Assisting's
Proposed Recommendations at Final Hearing, 22 October 2020
Available at: https://agedcare.royalcommission.gov.au/media/29098
16
Introduction of 24/7 onsite registered
nurse and increased minimum care
minutes requirements
Supplementary Regulatory Impact Analysis
July 2022
17
Purpose of this document
This Supplementary Regulatory Impact Analysis has been prepared by the
Department of Health and Aged Care (the Department) to inform Australian
Government decision-making on reforms to improve the quality of residential aged
care by:
• making it mandatory to have a registered nurse (RN) onsite 24-hours a day 7
days a week in residential aged care facilities from July 2023;
• increasing the minimum number of care minutes per resident per day to 215
minutes, including 44 RN minutes, from October 2024.
This supplementary analysis complements the certification by the Department that an
independent review (The Royal Commission into Aged Care Quality and Safety)
undertook a process and analysis equivalent to a Regulatory Impact Statement (RIS)
for these regulatory changes.
This supplementary RIS analysis compliments the analysis undertaken by the Royal
Commission by addressing RIS Question 7 - How Will You Implement and Evaluate
Your Chosen Option?
Background
In February 2021, as part of their final report, the Royal Commission into Aged Care
Quality and Safety (the Royal Commission) recommended (Rec 86) the adoption of a
regulatory requirement that established minimum care time requirements in
residential aged care facilities, including:
1. An initial requirement to deliver an average of 200 care minutes per resident
per day, including 40 RN minutes as well as to have an RN onsite for
16-hours per day (from July 2022).
2. increasing the requirement to 215 minutes, including 44 RN minutes, as well
as making it mandatory to have a registered nurse onsite 24-hours a day
(from July 2024)
On 11 May 2021, in response to the Royal Commission, the previous government
announced a package of support and reform to aged care as part of the
2021-22 Budget, including funding the first component listed above from 1 October
2022, and making the requirement mandatory from 1 October 2023.
As part of its election commitments, the Government undertook to require an onsite
RN in residential aged care facilities 24-hours a day, 7-days a week (24/7) and to
increase to the average minimum care minutes requirement to an average 215
minutes, including 44 minutes of RN time, in line with the full Recommendation 86 of
the Royal Commission.
The Government is introducing legislation that contains a number of measures
including introducing the 24/7 RN onsite requirement as a new approved provider
responsibility from 1 July 2023.
Subordinate legislation changes will also be introduced following this to mandate the
minimum care time requirements of an average of 200 minutes (including 40 RN
minutes) from October 2023, increasing to 215 minutes (including 44 RN minutes)
from October 2024.
18
These measures are aimed at improving the quality of care delivered within
residential aged care by ensuring appropriate levels of staffing are provided at all
times.
The regulatory impacts of the introduction of the 200 minute care time requirement was
assessed previously, and so are not included in the analysis of this supplementary RIS.
The importance of 24/7 RN availability and increased care minutes
People living in residential aged care facilities are some of the most vulnerable
people in society and have increasingly complex health and personal care needs.
RNs facilitate the delivery of high quality nursing care, blending skills in chronic and
acute illness, with an individualised, person-centred approach to the nursing care of
all care recipients. The multi-faceted role of the RN in residential aged care facilities
underpins the provision of collaborative, coordinated and integrated care. RNs
collaborate with general practitioners, health professionals and service providers in
the provision of quality care in residential care.
The Australian Institute of Health and Welfare records that 50% of people in
residential aged care facilities experience some form of dementia, 87% require high
level care and approximately 80% are known to have a mental health condition1. The
result is an increasing demand for services that can support a growing pattern of
frailty, dependence and complexity amongst populations receiving care in residential
aged care.
Further, data provided to the Royal Commission by the Australian College of
Emergency Medicine indicates that up to 40% of all transfers of care recipients from
residential aged care facilities to hospital emergency departments are potentially
avoidable through the provision of quality clinical care in the aged care facility. Falls,
antimicrobial misuse, poor wound management, medication error, escalation plans
for expected deterioration of chronic diseases, end of life care and palliative care
reflect some of the key contributors to avoidable presentations2. These are all
conditions and situations that an onsite RN is well placed to manage.
Evidence also indicates that almost half of all ambulance transfers from a residential
aged care facility to a hospital emergency department occur after hours3. This is a
time when staffing levels in aged care facilities are reduced, with access to nursing
care, particularly RN skills, limited.
RNs are able to recognise and ensure early intervention and management in
response to changes in an individual's health, thus reducing the risk of deterioration
and potentially reducing the need for unplanned admissions to acute facilities or
transfer to emergency departments. This not only assists in maintaining quality of life
for care recipients but also reduces overall costs to the health system.
The hospital environment poses a number of substantial risks to older people,
especially patients from residential aged care including; hospital acquired infections,
1 AIHW (2019b) People's care needs in aged care https://www.gen-
agedcaredata.gov.au/Topics/Care-needs-in-aged-care
2 ACEM (2019), ACEM Submission to the Royal Commission into Aged Care Quality and
Safety, https://acem.org.au/getmedia/27518608-64e3-4752-aa1c-
a4c6036fbf0b/SUB418_190910_ACEM_Submission_Royal_Commission_into_Aged_Care
3 Dwyer RA, Gabbe BJ, Tran T, Smith K and Lowthian JA (2020), Residential aged care
homes: Why do they cal '000'? A study of the emergency prehospital care of older people
living in residential aged care homes, J Emergency Medicine Australasia
19
deconditioning, delirium, pressure injuries and further falls4. An RN onsite 24/7 is able
to provide care that avoids these potentially adverse outcomes and improves the
quality of life of care recipients.
The Royal Commission contracted a report from the University of Wollongong's
Centre for Health Service Development, which found that, on average, each resident
in a residential aged care facility currently receives 180 minutes of care per day, of
which 36 minutes are provided by registered nurses5.
The Royal Commission report concluded that staffing levels within large parts of
residential aged care fall well short of good or even acceptable practice standards. It
found that the evidence is compelling that overall staffing levels in aged care are
linked to quality of care, and that RN numbers are a particularly important factor in
meeting an acceptable quality of care for care recipients.
In their final report, the Royal Commission noted 2016 data indicating that RNs
comprised 21% of the residential direct care workforce in 2003, but that by 2016 this
had dropped to around 15%. The proportion of enrolled nurses also dropped, from
13% to 10%. Over the same period, the proportion of the residential direct care
workforce who were personal care workers increased from around 58% to around
70%. This has resulted in increasingly complex resident care needs being managed
by a workforce with lower skills levels.
Following consideration of the evidence, the Royal Commission recommended ...
... that the Australian Government should require approved providers of
residential aged care facilities to meet a minimum quality and safety standard
for staff time. The standard should set required daily minimum staff time for
registered nurses, enrolled nurses and personal care workers for each
resident, over two stages--with 200 minutes of care per day of which 40
minutes are provided by registered nurses by 2022, and 215 minutes of care
per day by 2024, of which 44 minutes are provided by registered nurses. In
addition, when fully implemented in 2024, the standard should require at least
one registered nurse on site at each residential aged care facility at all times.
4 ACEM ibid
5 AHSRI and University of Wollongong, Resources Utilisation and Classification Study -
https://www.health.gov.au/resources/publications/resource-utilisation-and-classification-study-
rucs-reports
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Supplementary Assessment RIS Question 7 - How Will
You Implement and Evaluate Your Chosen Option?
Implementation
The key implementation timeframes for the new mandatory care time reforms are:
• From 1 October 2022 providers will be funded for the new care minutes
target of an average of 200 minutes, including 40 registered nurse minutes
per resident per day;
• From July 2023 it will be mandatory to have an RN onsite 24/7;
• From 1 October 2023 it will be mandatory to deliver to an average of 200
minutes, including 40 registered nurse minutes per resident per day;
• From 1 October 2024, the average minimum care minutes per resident per
day will increase to 215 minutes, including 44 RN minutes.
With the implementation of the Australian National Aged Care Classification (AN-
ACC) from 1 October 2022, there will be a $5.4 billion funding boost (over the 2022-
23 Budget forward estimates) to enable residential aged care providers to increase
staffing levels to meet the new 200 care minute requirements (targets). The care
minute targets will form new care minute standards that will be mandatory from 1
October 2023. This requirement will be set in subordinate legislation.
The care time targets for each facility are adjusted according the AN-ACC casemix
classification for each resident (as recommended by the Royal Commission). In
practice this means that facilities with a higher total casemix outcome (meaning
higher needs residents) would receive more funding while also being required to
meet higher care minute targets.
New quarterly reporting at the facility level of direct care time and costs commences
for the July-September period as part of the new Quarterly Financial report (QFR).
This reporting will allow the Department and the Aged Care Quality and Safety
Commission (the Commission) to assess whether providers are meeting their care
minutes requirements.
The Commission is an independent statutory authority tasked with overseeing the
regulation of aged care. The Commission's role is to uphold the objects of the Aged
Care Quality and Safety Commission Act 2018 to:
• protect and enhance the safety, health, well-being and quality of life of aged
care consumers
• promote confidence and trust in the provision of aged care
• promote engagement with consumers about the quality of care and services.
As the national regulator of aged care services subsidised by the Australian
Government, the Commission's role is to approve providers' entry to the aged care
system, to accredit, assess, monitor and investigate aged care services against
requirements, and to hold services to account for meeting their obligations.
The Commission resolves complaints about aged care services and to provide
education and information about our functions, and engages with consumers to
understand their experiences and to provide advice to providers about working with
consumers in designing and delivering best practice care.
The Commission delivers regulation that is proportionate, risk-based, responsive and
intelligence-led. This regulatory approach enables the Commission to focus activities
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on the areas of greatest risk to the safety, health and wellbeing of aged care
consumers, and on those providers providing care and services that fall short of
legislated standards.
The Commission uses education, information and targeted communications to
support their regulatory objectives, including publishing outcomes of our regulatory
activities to promote greater transparency and accountability, and highlighting
best practice.
The reporting for care minutes and 24/7 RN care will be used to inform the new star
ratings - primarily the rating for the delivery of quality care outcomes for residents.
The star ratings are being developed to allow consumers to meaningfully compare
aged care facilities based on the amount of resident care they deliver.
The requirement for 24/7 RNs will be set in primary legislation, with funding
arrangements to support providers to meet this requirement to be determined
through the October 2022-23 Budget. It is likely that additional reporting will be
required by providers on 24/7 RN coverage, for example reporting at the end of each
month through a form on the My Aged Care Provider Portal on the periods a facility
did not have an onsite RN. This will be developed in consultation with the sector,
including through the Residential Aged Care Funding Reform Working Group.
The Commission will have a substantial role in relation to the 24/7 RN and care
minute measures. This includes:
• educating the residential aged care sector about how the new requirements will
be regulated;
• identification of high risk services through analysis of data, including in
combination with other regulatory intelligence;
• monitoring and enforcing service compliance with the requirements; and
• managing increases in the volume of complaints about aged care staffing
matters.
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To support approved providers to understand and deliver on the new care time
requirements, the Department has:
• developed an online AN-ACC funding and care minutes estimator to help
providers estimate their care time requirements (and funding levels) based on
their mix of residents
• established a specialised AN-ACC Funding Helpdesk to help providers
understand their potential funding and care minutes targets (email:
ANACCfundinghelp@health.gov.au or phone: (02) 4406 6002)
• published fact sheets explaining how the care minutes targets are calculated, and
information on what counts as care time.
Further information and training will be provided to support providers to support
implementation, as further policy details are settled. These will include broadcasts to
providers through webinars, newsletters and websites, fact sheets and other resource
material.
Potential implementation challenges/barriers
Key challenges for implementation of the 24/7 RN and care minutes reform
measures are likely to be the preparedness of service providers and their ability to
meet the new requirements.
There are several reasons why these challenges may arise:
• the ongoing need for priority to be placed on responding to COVID-19;
• difficulty in attracting sufficient staff to deliver the increased care minutes
requirements;
• difficulty in attracting RNs, particularly in rural and remote settings; and
• the breadth of aged care reforms arising from the Royal Commission.
The ongoing COVID-19 pandemic, combined with seasonal influenza, is creating
significant staffing issues across the aged care sector as both residents and staff are
affected. This is adding additional stress to current staffing levels and impacting the
relief staffing pool normally accessed to meet such short-term staffing requirements.
Further, the need to grow the current aged care workforce - both nursing and care
workers - is a key element in sourcing the workforce needed to deliver both the 24/7
RN and care minutes reforms into the future. Without significant increases in
migration, growing the workforce locally will be challenging - at least in the short to
medium term.
The Government recognises that addressing low pay is critical to recruiting the
workforce needed to provide safe, quality care to the growing number of older
Australians. The Government will support workers' calls for better pay by making a
submission to the Fair Work Commission's aged care work value case by 8 August
2022, meeting recommendation 84 of the Royal Commission. This vital and essential
work needs to be treated with respect and rewarded with better pay.
While the aged care legislation allows for non-compliance actions to be used when a
provider breaches its responsibilities, the initial focus of implementation will be to
support providers to understand and implement the new provisions.
Risk mitigation actions include staggered implementation timeframes, commencing
from 1 October 2022, with consultations with the sector including discussion about
how workforce shortages impacting implementation of the 24/7 RN requirement will
be considered, particularly for aged care facilities in rural and remote settings.
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The Department has also established a confidential help desk for facilities seeking
specific assistance on reporting residential care labour costs and hours to support
providers to submit high quality information.
With regard to the revised reporting requirements, an information and communication
technology (ICT) capability is being developed. This capability will enable the
extraction of existing information held by the department, additional information to be
submitted by providers, and for reports in compliance with both the 24/7 RN measure
and the average minimum care minutes measure to be made publicly available on
the My Aged Care portal, specifically through inclusion of this information in the star
rating measure. Stakeholders will be consulted during the development of the ICT
solution to help enhance the user experience for providers in submitting data and for
those accessing information on My Aged Care.
Aged care stakeholders will be supported to implement the ICT solution by:
• involvement in user testing
• online training for approved providers
• online support tools
• an environment that will allow providers to become familiar with the tool prior
to formal submission of their data
• a Department staff member being available to respond to sector enquires
regarding the revised reporting requirements and their use in informing star
ratings.
A key challenge to the ICT capability is the development of an elegant solution to
extract data that is currently held by the Department in multiple databases to
minimise the need for providers to resubmit this data. The ICT solution will be
developed in close consultation with owners of each source database to respond to
this challenge.
Implementation of the AN-ACC represents a significant change to the aged care
sector, and the Department is working closely with stakeholders to ensure they are
supported through the implementation phase to deliver improved quality care
outcomes for residents.
The role of the Commission in implementation
It is critical that the Commission is appropriately resourced and equipped to regulate
the new provider requirements. The public will rightly expect a strong response from
the regulator once the requirements come into effect. This will in turn inspire
confidence in the regulatory framework that safeguards vulnerable consumers. The
Commission anticipates that their response will include unique and new regulatory
activities that look specifically at the 24/7 RN and care minute requirements and
respond to the increased volume of complaints.
From the Commission's perspective, the elements that may impact implementation
include:
1. Sector size and understanding. The residential aged care sector is large, with
approximately 2,700 services delivering care to approximately 189, 000
consumers, illustrating the need to significantly invest in communication and
education activities which build sector understanding and
capability. Residential aged care services are not currently required to meet
mandatory requirements for staffing and time spent on care delivery. A
critical part of ensuring compliance will be explaining how the Commission will
regulate the requirements, and what our expectations of the sector are. The
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Commission will take care to understand the information needs of residential
care services and consumers about care minutes and RN requirements, to
develop materials that are fit for purpose for this sector, and to ensure that
key messages are received by all target audiences - providers, services, and
consumers.
2. Impact of increased regulatory activity. The Commission anticipates a
reasonable proportion of services will be non-compliant with the requirements
and require some form of regulatory treatment. The data collation and
analysis, and compliance monitoring and enforcement activities implicated in
the implementation of these measures are complex and will require a
nuanced approach to be developed and executed in collaboration with the
Department. It is understood that the ability of services to meet the
requirements will be highly variable due to a range of factors, and in thin
markets (geographically or otherwise) may be compromised. The
Commission will also consider provider compliance through the broader lens
of risk related to poor quality of care for consumers, and actively consider
compliance with related responsibilities, like the Aged Care Quality
Standards.
3. Increased volume of complaints. The Commission anticipates an increase in
both new and unique complaints, and complaints processing activity, with the
implementation of the new measures. It is expected that consumers and their
families/representatives will be highly sensitive to services' compliance with
these new requirements. This, in turn, is likely to lead to an increase in
complaints to the Commission about related matters.
Evaluation
The Department is planning a multi-level evaluation strategy, consistent with the
systemic nature of the AN-ACC reform. The evaluation of this specific measure will
use qualitative and quantitative metrics to measure success against the objectives of
the 24/7 RN and average minimum care minutes reforms in support of broader aged
care reform for senior Australians. This approach will also enable identification of
whether additional reforms are required to deliver sustainable quality and safety in
Australia's home and residential aged care services. The approach will feed into
Ministerial and public reporting.
The Department is exploring the feasibility of publishing the de-identified data
resulting from assessments, to encourage independent academic research on factors
correlating with better practice care provision by providers and improved care
experience for recipients.
The Department will monitor financial impacts through payment system data
produced by Services Australia. The annual independent pricing review function will
additionally use costs data supplied by a representative sample of providers as a key
input in forming its recommendations about the overall funding envelope and specific
subsidy rates within it.
At the overall level, the department would report various financial and output metrics
annually in the Portfolio Budget Statement, the Annual Report and in the Report on
the Operation of the Act.
Specific components of the 24/7 RN access and average minimum care minutes
reforms will also be monitored using a mixed methods approach, drawing on
quantitative and qualitative data sources. Monitoring activities will help keep track of
sector performance against the new responsibilities and help to inform any decision
25
to modify aspects of the approved provider responsibilities. Activities will also track
changes in the quality of life for care recipients - for example through reductions in
transfer to hospital, reduced falls, improvement in condition and fewer pressure
injuries.
Where practicable the evaluation will use existing data. Where new systems are
being developed technical reporting mechanisms will be incorporated to allow real
time monitoring and feedback notifications - existing My Aged Care monitoring tools
will be leveraged where possible.
Examples of data that may be tracked include:
• care time data collected through the QFR
• formal and informal feedback and consultation with the aged care sector on
the impact of the reforms
• monitoring provider compliance, including provider performance against Aged
Care Quality Standard 3 - Personal Care and Clinical Care, Standard 4 -
Services and supports for daily living and Standard 7 - Human Resources
• analysis of complaints data for matters relating to clinical care and support for
daily living.
While ACFI and other legacy funding arrangements would cease in October 2022,
ACFI influences on provider behaviour would take some time to wash out of the
system. The Department would undertake a review of the AN-ACC model as a whole
after two years of full operation, once it becomes possible to assess accurately the
extent to which it is achieving reform objectives.
Estimate of Regulatory Burden
The regulatory burden to business, community or individuals is quantified using the
Australian Government's Regulatory Burden Measurement Framework and is
provided below.
The arrangements for 24/7 RN and increasing the minimum per resident care
minutes requirements to 215 minutes will increase the regulatory burden on business
and community organisations. However, the Royal Commission into Aged Care
Quality and Safety made strong links between the access of care recipients to 24/7
RN care and increased average minimum care minutes and the quality and safety of
services. In addition it should be noted, that residential aged care providers will be
provided additional government funding to deliver the additional required care. This
funding is not included in the costing below.
No offsets were identified to offset this regulatory burden, the department remains
alert to reduce the regulatory burden for affected stakeholders.
Average annual regulatory costs (from business as usual)
Change in
costs ($ Community Total change in
million) Business organisations Individuals costs
Total, by
sector $49 $82 - $131
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Attachment A
Independent reviews for certification of response to the Royal
Commission into Aged Care Quality and Safety
1. Royal Commission into Aged Care Quality and Safety, Final Report,
26 February 2021
Available at:
https://agedcare.royalcommission.gov.au/publications/final-report
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