Purpose of the Bill

The purpose of the Aged Care Amendment (Aged Care Recipient Classification) Bill 2020 (the Bill) is to amend the Aged Care Act 1997 (the Act) to:

• provide for an alternate system to classify aged care residents into categories. This will operate alongside the existing classification scheme which will continue to be used for funding purposes and
• allow independent assessors to assess residents under this alternate system.

Background

The aged care system supports older people who can no longer live without assistance in their own homes. Care is provided in people’s homes, in the community and in aged care homes by a range of not-for-profit, for-profit and government providers. The Australian Government is the primary funder and regulator of the aged care system.[1]

Residential aged care is provided in aged care homes on a permanent or respite (short-term) basis. Services include personal care, accommodation, laundry and meals, nursing and some allied health services.[2]

Residential aged care is funded by both the Australian Government and by contributions from residents. The Australian Government pays subsidies and supplements to approved providers for each resident receiving care under the Act. In 2018–19, the Australian Government paid $13.0 billion in subsidies and supplements to residential aged care providers. The majority of this, $12.0 billion or 91.8 per cent, was for the basic subsidy for permanent residents.[3]

Aged Care Funding Instrument (ACFI)

The basic subsidy for each permanent resident is calculated using the Aged Care Funding Instrument (ACFI). The ACFI is a tool used by the provider to assess the care needs of the resident. The ACFI consists of twelve questions about a resident’s care needs, and two diagnostic sections (for medical conditions). The answers determine funding across three domains: Activities of Daily Living (ADL) such as eating, walking or toileting; Behaviour (BEH) such as wandering, challenging behaviour, cognitive ability and depression; and Complex Health Care (CHC) which includes the need for assistance with medication and the need for ongoing health care procedures. For each domain, a resident’s needs may be assessed as nil, low, medium or high. The basic subsidy is the sum of the amount payable in each domain (that is, ADL + BEH + CHC).[4] For example, as at 20 September 2020, a permanent resident rated ‘high’ on all three domains would attract a basic daily subsidy of $223.14 ($115.49 + $37.81 + $69.84).[5]

The ACFI has been a source of controversy, and proposals for change, for some years. In the Mid-Year Economic and Fiscal Outlook 2015–16 (MYEFO) and the 2016–17 Budget, the Government made changes to ACFI scoring and funding due to concerns about higher than expected growth in ACFI expenditure, particularly in the CHC domain.[6] The Government argued that the growth in claims could not be explained by an increase in the frailty of residents, and that some providers were claiming using ‘sharp practices’ to maximise revenue.[7] The ACFI savings measures were criticised by aged care providers and unions, who expressed concerns about ‘the impact of the savings on the quality of care, staffing levels and service viability’.[8]

The Aged Care Financing Authority (ACFA), which advises the Government on aged care funding, has outlined a number of issues with the ACFI. These include fluctuating funding cycles, administrative burden and perverse incentives:

The Aged Care Funding Instrument (ACFI) has not provided a stable and effective funding tool for both the Government and providers. Under ACFI there have been cycles of high growth in payments to providers, followed by periods of no growth, causing uncertainty for providers, investors and the Government. ACFI is also administratively complex for both providers and the Government and has resulted in the sector diverting resources away from delivering care. In particular, ACFI has perverse incentives that may encourage outdated modes and types of care and lead to inefficiencies and providers focusing on maximising ACFI claiming rather than on the needs of residents.[9]

Options for a new funding model

In the 2016–17 Budget, the Government also announced that it would further consult with the sector on future options for determining aged care funding, including the possibility of having funding assessments done by an independent party rather than providers.[10] To this end, the Government commissioned two scoping reports in 2017.

Revised ACFI model

The 2017 Review of the Aged Care Funding Instrument was undertaken by Applied Aged Care Solutions (AACS) to examine options for redesigning the ACFI to increase sustainability and predictability of funding.[11] It recommended a Revised Aged Care Funding Instrument (R-ACFI) with changes to the existing three domains, as well as the addition of a fourth domain to fund physical therapy.[12] The Government does not appear to be pursuing the proposed R-ACFI model.

The AACS review also recommended that external assessors should be trialled for residential aged care funding.[13] Similarly, the broader Legislated Review of Aged Care 2017 (which did not specifically review the ACFI) recommended that independent assessors should be used to reduce the risk of a conflict of interest.[14]

Australian Health Services Research Institute model

The other commissioned scoping report was the Alternative Aged Care Assessment, Classification System and Funding Models: Final Report by the Australian Health Services Research Institute (AHSRI) at the University of Wollongong. AHSRI examined five options for residential aged care funding, and recommended a blended funding model taking into account both fixed and variable costs associated with delivering care:

This option recognises the fixed and variable costs of delivering care. The two main elements of this model are standard per diem or fixed payments to cover the cost of ensuring capacity within the facility and the variable payment to cover the costs of individualised care for residents. Both the fixed and variable payments under this model would be determined by a costing study.[15]

Following on from this recommendation, the Government commissioned AHSRI to undertake a research study to examine costs and cost drivers in residential aged care, to create a new funding model, and to develop an assessment tool for use by external assessors.[16] This national study was called the Resource Utilisation and Classification Study (RUCS), and was undertaken during 2018.[17] The primary output of the RUCS study was ‘a new, fit-for-purpose casemix classification for the Australian residential aged care sector’.[18] A casemix classification, frequently used in hospital funding, is ‘a consistent method of classifying types of patients, their treatment and associated costs’.[19]

Australian National Aged Care Classification (AN-ACC)

The new classification system recommended in the RUCS study is called the Australian National Aged Care Classification (AN-ACC). The AN-ACC is based on the separation of resident assessment for funding purposes and assessment for care planning purposes, with:

• assessment for funding done by external independent assessors and
• assessment for care planning done by the aged care facility.

Under the AN-ACC, care funding for each resident is made up of:

• a fixed amount per day which will be the same for all residents in a facility (but may vary between facilities) plus
• a variable amount for each resident, determined by the cost of their individualised care and based on their AN-ACC casemix class plus
• a one off adjustment payment for each new resident when they first enter care.[20]

For the variable funding component, a series of assessment tools are used to sort residents into one of thirteen classes as shown below. Each class contains residents with similar needs:

Class 1 Admit for palliative care

Class 2 Independent without compounding factors (CF)

Class 3 Independent with CF

Class 4 Assisted mobility, high cognition, without CF

Class 5 Assisted mobility, high cognition, with CF

Class 6 Assisted mobility, medium cognition, without CF

Class 7 Assisted mobility, medium cognition, with CF

Class 8 Assisted mobility, low cognition

Class 9 Not mobile, higher function, without CF

Class 10 Not mobile, higher function, with CF

Class 11 Not mobile, lower function, lower pressure sore risk

Class 12 Not mobile, lower function, higher pressure sore risk, without CF

Class 13 Not mobile, lower function, higher pressure sore risk, with CF.[21]

New residents requiring palliative care are automatically placed in Class 1. Other residents are classified according to their mobility, and then again according to factors such as cognitive ability, function and pressure sore risk, and ‘compounding factors’.[22] Different compounding factors are considered for different classes. CFs include activities of daily living, palliative function, functional motor and cognitive independence, daily injections, behaviour, risk of pressure sores, frailty, falls, complex wound management and obesity.[23]

Funding under the AN-ACC is calculated using a base unit of price called the National Weighted Activity Unit (NWAU).[24] Funding is expressed in multiples of the NWAU for different facility types, resident classes and the one-off adjustment payment for new residents, as shown in the table below:

Source: DoH, ‘Resource utilisation and classification study – revised tables’, DoH website.

It can be seen that for the fixed funding component per resident (which is the same for all residents within a facility), Indigenous services in very remote areas would receiving the highest amount, and services not in remote areas nor catering to homeless clients would receive the lowest amount.

For the variable funding component, residents in Class 2 (independently mobile without compounding factors) would attract the lowest funding, and residents in Class 1 (admitted for palliative care) and Class 13 (not mobile, lower function, higher pressure sore risk with compounding factors) would attract the highest funding.

AHSRI notes that the NWAU price is a policy decision for government. It could be set at a level that would be cost neutral overall compared to the current system, or it could be set for funding growth.[25] AHSRI recommends that an annual national costing study should be undertaken to determine the following year’s NWAU (similar to the work done by the Independent Hospital Pricing Authority to determine the National Efficient Price for hospital funding).[26]

Consultation and trial

The Government has consulted extensively on the AN-ACC through stakeholder forums, an industry reference group, a consultation paper, and now a stakeholder working group.[27]

The Prime Minister announced $4.6 million in funding for a trial of the AN-ACC on 10 February 2019.[28] The purpose of the trial was:

• to collect data to validate the expected distribution of care recipient classifications under the AN-ACC and
• to field test the performance of
  • the AN-ACC assessment tool
  • an independent assessment workforce trained to administer the tool and
  • the training, clinical and IT supports for assessors.[29]

The trial was initially scheduled to run until June 2020, but concluded early in April 2020 due to the impact of the COVID-19 pandemic on aged care homes. Sixty registered nurses, occupational therapists and physiotherapists from four contracted organisations were trained to undertake
AN-ACC assessments in a two-day course. During the trial, these assessors completed 7,387
AN-ACC resident assessments across 122 nursing homes. [30]

The distribution of residents between the AN-ACC classes in the trial was similar to that found in the RUCS study. In both, Class 5 (assisted mobility, higher cognitive ability, with compounding factors) was the most common classification, with more than 20 per cent of residents assigned to this class.[31]

The trial also found:

• assessors can complete an average of six assessments per working day
• a suitably qualified and experienced independent assessment workforce can be readily contracted to undertake AN-ACC assessments and
• the training and clinical supports were effective, but could be improved by increasing the length of training to three days.[32]

Shadow assessments

The 2020–21 Budget included funding of $91.6 million to support the potential implementation of the AN-ACC funding model. As well as payment and IT system modifications, this includes funding for one year of ‘shadow assessment’ starting in 2021:

During this year of shadow assessment, all residents will be assessed by an independent assessor using the AN-ACC assessment tools though funding will continue to be provided through the existing Aged Care Funding Instrument during this period.[33]

The Government will continue to consult on the AN-ACC. A final decision on the AN-ACC and an ongoing assessment workforce has not been taken.[34] The Government is progressing work on this new funding model as it prepares to respond to the recommendations of the Royal Commission into Aged Care Quality and Safety (the Royal Commission), which is due to hand down its final report by 26 February 2021.[35]

Counsel Assisting the Royal Commission recently proposed an extensive set of recommendations for aged care reform. This included a proposed recommendation to move to a casemix classification system in residential aged care, such as the AN-ACC, by 1 July 2022:

By 1 July 2022, the Australian Government should fund approved service providers for delivering residential aged care through a casemix classification system, such as the Australian National Aged Care Classification (AN-ACC) model. The classification system should take into account the above recommendations for high quality aged care. Ongoing evidence-based reviews should be conducted thereafter to refine the model iteratively, for the purpose of ensuring that the model accurate classification and funding to meet assessed needs.[36]

The Bill does not implement the AN-ACC nor make changes to aged care funding under the ACFI. Rather, the Bill provides for an alternate system of classification to operate alongside the ACFI (with details of the alternate system to be specified in subordinate legislation). The Bill also provides for the delegation of powers to assessors to assess residents under this alternate system (the so-called shadow assessments described above).

The Government will use the data from these shadow assessments to ‘ensure that individuals, care workers, providers and the government all have the information they need to fully understand the new funding model’.[37]

Committee consideration

Senate Community Affairs Legislation Committee

The Bill was referred to the Senate Community Affairs Legislation Committee for inquiry and report by 2 December 2020. Details of the inquiry are at the inquiry homepage.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) expressed concern about the assessment (proposed section 29C-3) and classification (proposed section 29C-2) of residents by the Secretary (or delegate). The Committee questioned why the details of the process to be followed in assessing and classifying residents were to be left to delegated legislation.[38] The Committee also expressed concerns about Item 11, which allows the Secretary to delegate their powers to assess care recipients to a person who satisfies the criteria specified in the Classification Principles. The Committee questioned why this delegation is considered necessary, and why the criteria are to be set out in delegated legislation.[39]

The Scrutiny of Bills Committee requested further advice as to how the computerised decision-making provided for in proposed section 29C-8 will operate to classify care recipients.[40] The Committee also expressed concern about the protection of resident’s private information contained in a care assessment made under proposed section 29C-3. The Committee accepted that the disclosure of such information for the purpose of providing care or assessing needs appeared reasonable, but questioned whether the disclosure of such information for the purposes of monitoring, reporting on and conducting research into aged care, or assessing the level of need in the community, was appropriate.[41]

Policy position of non-government parties/independents

At the time of writing, no comments by non-government parties or independents specifically on the Bill had been identified.

Position of major interest groups

At the time of writing, no stakeholder comment specifically relating to the Bill had been identified.

Many key aged care stakeholders are represented on the Department of Health’s Residential Aged Care Funding Reform Working Group, which is considering issues related to the AN-ACC.[42]

Some stakeholders have also commented on the proposed AN-ACC model through submissions to the Department of Health’s consultation paper or to the Royal Commission. In 2019, aged care provider peak bodies Leading Age Services Australia and Aged & Community Services Australia both supported the trial of the AN-ACC, but called for more information on the pricing of the NWAU in the model, which would allow providers to estimate how much funding they would receive under the new model.[43]

The Combined Pensioners and Superannuants Association of NSW (CPSA) submitted to the Royal Commission in 2020 that it supported ‘the ongoing development of the AN-ACC as an alternative to the ACFI’.[44] National Seniors Australia also submitted that it generally supported the AN-ACC funding model, including the use of independent assessors.[45]

Dementia Australia has expressed support for the AN-ACC model, while noting that it needs to be funded sufficiently to provide for best-practice models of care.[46] Palliative Care Australia (PCA) has expressed concern that the AN-ACC ‘takes a narrow view of palliative care and does not allow people to be assessed as eligible for the only palliative care classification after admission’. PCA has called for a small study to be undertaken to ensure that the model caters for palliative care needs.[47] The Australian Nursing and Midwifery Federation supports the implementation of the AN-ACC, including independent assessments.[48]

Financial implications

The Bill has no financial impact.[49]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible. The Government considers that the Bill promotes the right to an adequate standard of living and the right to health, because the new classification scheme aims to more accurately classify care recipients in order to ‘better target the level of care required to meet their needs’.[50]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment in relation to the Bill.[51]

Key issues and provisions

Residential aged care recipients are classified under the ACFI according to the process set out in Part 2.4 of the Act. An appraisal of the level of care required is made by the approved provider under section 25-3 of the Act, according to the procedures specified in the Classification Principles 2014 (the Classification Principles). Section 25-1 of the Act provides that if the Secretary receives an appraisal made under section 25-3, the Secretary (or delegate) must classify the resident according to the level of care they need. The Classification Principles may specify the method the Secretary must follow.

The Bill does not amend Part 2.4 of the Act. This means that the current system of classification using the ACFI will continue. Rather, the Bill provides for an alternate system of classification which will not be used for funding purposes, unless further legislation is introduced.

Classification and assessment of care recipients

Item 3 of the Bill inserts proposed Part 2.4A into the Act to provide for classification of care recipients on the Secretary’s initiative. Within new Part 2.4A, proposed section 29C-1 provides that such classification applies to approved recipients of residential care, and some types of flexible care (with the types of flexible care to be specified in the Classification Principles).[52]

Proposed section 29C-2 provides that the Secretary (or delegate) may classify a recipient for respite (temporary) or non-respite care according to the level of care they need, relative to other care recipients.[53] The recipient may only be classified if their care needs have been assessed under proposed section 29C-3. The Classification Principles may specify the methods or procedures the Secretary (or delegate) must follow in determining the appropriate classification level for the recipient.[54] The Secretary (or delegate) must take into account the assessment under proposed section 29C-3, as well as any other matters specified in the Classification Principles.[55] The Secretary (or delegate) must notify the care recipient and their approved provider of matters including the classification and the day it takes effect.[56]

Proposed section 29C-3 provides that the Secretary (or delegate) may assess the level of care needed by a care recipient, in order to classify them, reclassify them, or to decide whether to reclassify them.[57] The Classification Principles may specify the procedures to be followed in making the assessment.[58] If the care recipient has been approved for respite care under Part 2.3 of the Act, and the circumstances specified in the Classification Principles apply, then the Aged Care Assessment Team (ACAT) assessment made under section 22-4 of the Act is taken to be an assessment of the level of care required, and the assessment is taken to have been made for the purposes of classifying the care recipient under proposed Part 2.4A.[59]

Proposed section 29C-4 provides that a care recipient may have both a non-respite and a respite classification at the same time.

Proposed section 29C-5 provides that the Classification Principles may set out the classification levels under proposed Part 2.4A, may specify the criteria for determining which level applies to each recipient, and may set out different classification levels for respite and non-respite care.

Proposed section 29C-6 provides that the Classification Principles may exclude a class of care recipients from classification under proposed Part 2.4A. Unfortunately the Explanatory Memorandum to the Bill does not provide any examples of the circumstances in which this might occur.

Proposed section 29C-7 provides that if a person ceases to be a care recipient under proposed Part 2.4A, their classification is not in effect, but that if they become such a care recipient again, their classification continues from that time.

Proposed section 29C-8 provides that the Secretary (or delegate) may use computer programs to make decisions on the classification of care recipients under proposed Part 2.4A. The decision of the computer program is taken to be a decision made by the Secretary, and the Secretary (or delegate) may substitute a decision if satisfied that the computer program’s decision is incorrect.[60]

Proposed section 29D-1 provides that the Secretary (or delegate) may reclassify a care recipient if:

• the approved provider of the care requests a reclassification in writing[61] and
• the Secretary is satisfied that the care recipient’s care needs have changed significantly (according to any criteria set out in the Classification Principles).[62]

Proposed section 29E-1 provides that the Secretary (or delegate) must change a classification under this Part if satisfied that either:

• the assessment of the level of care was incorrect or inaccurate or
• the classification was incorrect for any other reason.[63]

Before changing the classification, the Secretary (or delegate) must review it, having regard to any relevant material on which the classification was based, any matters specified in the Classification Principles, and any other relevant material.[64] If the Secretary (or delegate) changes the classification, the changes take effect on the same day that the original classification took effect.[65]

Proposed section 29F-1 provides that, unless expressly provided otherwise, a classification or classification level under proposed Part 2.4A does not have effect for the purposes of:

• the Aged Care Act (other than proposed Part 2.4A and one other paragraph dealing with the transfer of records between providers)
• any legislative instrument under the Aged Care Act (other than Classification Principles as they relate to this Part)
• the Aged Care (Transitional Provisions) Act 1997 (the Transitional Provisions Act) and associated legislative instruments or[66]
• any other law of the Commonwealth.

It further specifies that a classification level under proposed Part 2.4A  cannot affect any subsidy paid to a provider under Chapter 3 of the Aged Care Act or Chapter 3 of the Transitional Provisions Act (such as the basic subsidy), nor can it affect any fees that the approved provider charges a care recipient.

Item 5 provides that decisions of the Secretary (or delegate) under proposed Part 2.4A to classify, not reclassify or change the classification of a care recipient are reviewable decisions.

Requirements relating to delegates making assessments

Approved aged care providers have responsibilities relating to accountability for the aged care they provide.[67] Item 4 of the Bill amends the Act to provide that they must allow delegates of the Secretary to access the service to assess the care needs of residents under proposed section 29C‑3.

Item 11 of the Bill provides that the Secretary may, in writing, delegate their powers and function to assess care recipients under proposed section 29C-3 to a person who satisfies the criteria specified in the Classification Principles. This could include requirements relating to ‘professional qualifications, demonstrated experience, role-specific training and other formal credentials required of a delegate’.[68]

Item 12 of the Bill inserts proposed section 96-2A, which provides that these assessor delegates must be issued with a photographic identity card, which they must carry and show on request. Failure by such an assessor to return the card within 14 days of ceasing to be a delegate (unless the card is lost or destroyed), is an offence of strict liability carrying a penalty of one penalty unit ($222).[69]

Concluding comments

The Bill provides for an alternate system for classifying aged care residents. It will operate alongside the current ACFI system, without making any changes to residential aged care funding. This should allow the Government and providers to gain more information on how the proposed AN-ACC system will operate, prior to a final decision being made on whether to switch to the AN‑ACC for funding purposes. It also positions the Government to quickly respond to the final report of the Royal Commission, due in February next year.