Overview
2.1
Submitters and witnesses provided a range of views on the bill’s three schedules, primarily relating to how the new measures will be implemented and how the bill interacts with other proposed reforms to the aged care system in Australia.
2.2
The inquiry received 34 submissions that expressed broad support and encouragement for the intent of the bill to upgrade the quality of aged care support in line with the findings of the 2021 Royal Commission into Aged Care Quality and Safety. In particular, the sector welcomed the intent to increase registered nurse staffing levels, cap home care charges and increase transparency around the financial and operational performance of aged care facilities.
2.3
Council on the Ageing (COTA) Australia submitted:
COTA Australia welcomes the commitments made in this legislation and supports its intentions. We warmly welcome the priority which the Albanese government and the Minister for Aged Care have given this Bill in the legislative program. This is unprecedented.
2.4
National Seniors Australia commented:
As the peak consumer body for older Australians, National Seniors Australia has long advocated for improvements to aged care services and, as such, we support the intent of proposed amendments.
2.5
The Health Services Union (HSU) stated:
The HSU supports [the bill] and its quick passage through the Senate at the conclusion of this Inquiry. The HSU welcomes the new Government's prompt and decisive action in aged care, making it a first order of business. For our members, a Bill that addresses the deepening workforce crisis and the public's trust deficit in the sector is long overdue and therefore most welcome.
Structure of the bill and reliance on delegated legislation
2.6
As an overarching comment on the structure of the bill, several submitters expressed concern that each of the bill’s three schedules require considerably more consultation on the final details, which are reliant on delegated legislation that is yet to be developed. For example, National Seniors Australia submitted:
Each of the amendments rely on delegated legislation to enact the obligations set out in the amendments.
It is concerning there will be no parliamentary oversight over the details used to: set the exemptions to registered nurses (Schedule 1), determine caps on home care charges (Schedule 2), or the detail the types of information required to be made publicly available (Schedule 3).
Each rely on the quality of delegated legislation—Quality of Care Principles (Schedule 1), User Rights Principles (Schedule 2) and Information Principles (Schedule 3).
The Information Principles, for example, do not currently specify a provider must make its financial affairs public. We believe aged care providers, as recipients of public funds for the care of older Australians, must be fully transparent about how they spend the public money they receive.
2.7
The Australian Nursing and Midwifery Federation (ANMF) stated that while it strongly supports the intentions behind the bill, ‘we note that many of the details around implementation of the bill's intended reforms will be outlined in subordinate legislation’:
Without access to the subordinate legislation that will be introduced by the Government, the ANMF is limited in its ability to make full comment on the details of this Bill.
We also note that the subordinate legislation will be a disallowable instrument, which raises some concerns for ANMF members. We will therefore be seeking sufficient time and information for full consultation with both our members and the parliament on the draft subordinate legislation.
2.8
COTA noted that the structure of the bill and reliance on subsequent subordinate legislation ‘causes concern to some in the sector’, but stated:
…COTA supports the Government position in regard to this legislation but will play an active role in working with all MPs and Senators to review the subordinate legislation when it is tabled.
It would be a gesture of good faith by the new government to schedule a presentation and explanation of the subordinate legislation in both the House and Senate with time for questions and debate.
2.9
The Law Council of Australia (Law Council) recognised that the bill ‘is consistent with the aged care legislative framework for the Aged Care Act to authorise the Minister to prescribe specific regulatory details in Principles’, and made several drafting recommendations that it considered would strengthen the clauses in the bill relating to delegated legislation.
2.10
The Department of Health and Aged Care (department) stated that providing for operational details to be specified in delegated legislation ‘will allow flexibility to fully consider complexities related to implementation, which have been highlighted through the submissions to the Committee’. The department noted further:
Work is currently underway to determine the matters that will be specified, and this work will be informed by consultation with a range of relevant stakeholders. This will also include consultation on exposure drafts of the proposed delegated legislation where timing permits—and otherwise will be undertaken on the general policy parameters.
The new Aged Care Act [to be introduced in 2023] will also provide an opportunity to refine the measures and address any implementation issues that may arise.
Schedule 1 of the bill—New Registered Nurse requirements
Support for increased Registered Nurse staffing
2.11
A significant number of submitters expressed support for the proposed new responsibility for aged care providers to ensure that a registered nurse is always present on site and on duty.
2.12
Aged care advocacy groups emphasised the importance of this measure to improve outcomes for aged care recipients. National Seniors Australia submitted that it:
…has heard directly from older Australians, recounting situations where a registered nurse was not available during evening shifts, and this led to negative health and wellbeing outcomes. This includes the unnecessary and costly movement of residents to hospital because there wasn’t timely nursing care available at the aged care home. The Royal Commission also heard of many cases where poor care was a direct result of lack of trained staff, and where lack of nursing and medical care led to neglect, suffering and preventable deaths.
There must always be qualified nursing staff available to tend to the needs of aged care residents, given the increasing proportion of people with severe frailty, dementia and high care needs.
2.13
COTA submitted that this measure ‘brings Australia into line with similar regulations in other countries’, adding that nurses ‘play a vital role in aged care in partnership with allied health professionals, lifestyle coordinators and well-trained personal care workers’.
2.14
Ms Samantha Edmonds, Manager, Policy and Systemic Advocacy at OPAN, told the committee:
[This measure] is essential for residents in terms of care, in terms of quality of care, and in terms of knowledge and understanding of particular conditions and issues. We know older people are entering aged care more frail with more chronic conditions and more complex conditions. It's absolutely essential that they have the matching clinical care there on hand that can assist them… [P]eople don't want to be sent off to hospital from a residential-care facility, so having a nurse there enables that person to stay in that environment, where they feel safe and comfortable.
2.15
Submitters and witnesses raised a number of issues relating to the implementation of the measures in Schedule 1, including:
the interaction between registered nurse requirements and other aged care staffing reforms;
financial implications arising for aged care providers from these measures;
workforce challenges associated with increased registered nurse requirements;
impacts on the overall staffing models of aged care providers, including the particular impacts on rural, small, and specialist services, indigenous health services, as well as the provision of allied health services in aged care;
the scope of any exemptions regime to be developed through subordinate legislation; and
the implementation timeline for this schedule.
Interaction with other aged care staffing reforms
2.16
The Health Services Union noted that while the bill addresses the registered nurse component of the minimum staffing standards recommended by the Royal Commission, further actions are required to meet the other elements of this recommendation:
The Royal Commission made a final recommendation (86) to improve the number of direct care staff and staff time standards across three distinct groups – Registered Nurses (RN), ENs [Enrolled Nurses] and [Personal Care Workers]. While the rollout of the AN-ACC funding mechanism [in October 2022] will allow for the first tranche of staff time standards to begin, and Schedule 1 of this Bill will further advance its implementation via more RNs, Recommendation 86 cannot be marked as completed until all details are finalised in subordinate legislation and fully implemented in services. Specifically, this requires increasing care minutes across the three identified skills groups to ‘215 care minutes per resident per day for the average resident, with at least 44 minutes of that staff time provided by a registered nurse’.
2.17
The ANMF welcomed the introduction of the new registered nurse requirements, and submitted:
Along with mandated care minutes, this requirement will strengthen overall staffing standards in nursing homes across the country and will significantly contribute to improved safety and quality in care for older Australians. The ANMF is therefore also pleased to see the Government has committed to the ensuring a minimum of 215 care minutes (including 44 registered nurse minutes) by October 2024 as recommended by the Royal Commission.
2.18
Representatives of the department noted that the government’s commitment to introduce minimum care minute standards for aged care residents (for an average of 200 minutes per day of care by 1 October 2023, and an average of 215 minutes of care per day by 1 October 2024) will be implemented through subordinate legislation, via changes to the Aged Care Quality Standards.
Financial implications for aged care providers
2.19
The measures proposed in the bill, and broader reforms in the sector, come in the context of significant financial and workforce pressures in the aged care sector. Several submitters noted that a financial performance survey report covering the nine months to March 2022 showed aged care providers averaging losses of $12.85 per resident per day, with this figure forecast to drop further to $15.59 per resident per day by end of June 2022.
2.20
Baptist Care Australia submitted that the aged care sector is facing a ‘fiscal cliff’ due to ‘multiple, compounding factors including the extra costs associated with covid response measures, a substantial drop in occupancy rates, and a rapid increase in operational costs’. It stated:
Our members have not been immune to these financial pressures and are concerned about the impact that this has on quality and consumer outcomes. Any proposal that introduces new requirements without adequate funding attached has the potential to negatively impact the future outcomes of older Australians.
2.21
Anglicare Australia expressed concern that the financial impact of the increased staffing requirements could threaten the viability of some providers, particularly in regional areas:
About two-thirds of residential care providers are operating at a loss. We are concerned about any additional financial impact of these changes, especially on rural and regional providers. If these providers were to fail, whole communities could be left without care options and older people forced to move far from their families and support networks.
2.22
Anglicare Sydney described the reforms as ‘an excellent first step in upgrading the quality of care for residents’, but noted the ongoing financial constraints facing providers and submitted that ‘what is required is an ongoing funding reform in the aged care sector to ensure that providers will be financially viable to meet the new standards of patient care’.
2.23
The Aged and Community Care Providers Association (ACCPA) submitted:
The requirement for 24/7 registered nurse coverage must be fully funded by Government. We note that the Supplementary Regulatory Impact Statement indicates that the funding arrangements to support providers to meet this requirement is to be determined through the October 2022-23 Budget.
2.24
As noted in chapter 1, the government has estimated the cost of implementing the new registered nurse requirements at $450.7 million over the forward estimates. Representatives from the department stated that it is working with government as part of the October 2022 Budget process on issues relating to that funding need, including on how funding would be allocated to different types of facilities.
Workforce challenges
2.25
The challenge of recruiting and retaining enough registered nurses to meet the new proposed 24/7 requirements for aged care facilities was a consistent theme raised in evidence to the committee. The ACCPA summarised current workforce constraints as follows:
It is well recognised that there is an acute workforce shortage in aged care, with many approved providers unable to fill vacant registered nurse shifts. Whilst this has been most acute in the regional, rural, and remote…locales where many providers have experienced long-term vacancies, this pressure is also now being felt by more and more metropolitan providers.
These workforce pressures, which were present prior to 2020 have been exacerbated by the COVID-19 pandemic. Multiple waves of emerging variants of the coronavirus has resulted in large numbers of aged care staff furloughing (either through direct infection or from close contact quarantine requirements) and this has placed enormous pressures on workforce availability, and this does not look like abating any time soon.
2.26
Anglicare Australia submitted that many of its members’ residential aged care facilities already have a registered nurse on site at all times, but for others, ‘the difficulties in recruiting nurses and aged care workers pose a major barrier to meeting the Bill’s requirements’.
2.27
Mr Paul Sadler, CEO of ACCPA, told the committee that it believes around 1,440 additional registered nurses (equating to around 860 full-time-equivalent positions, given the part-time nature of some of this workforce) will be required to meet the new 24/7 RN requirements across the aged care sector.
2.28
Representatives from the department gave evidence that, based on its modelling, around 850 to 900 additional registered nurses in total will be required. They noted that, based on the most recent aged care workforce census conducted in 2020, over 80 per cent of aged care facilities currently have a nurse 24/7 on site, and a further nine per cent of facilities had a nurse available on call.
2.29
COTA emphasised the need for government to assist in developing a nursing workforce strategy for the aged care sector:
The 24/7 registered nursing requirement will need to be complemented by a dedicated government strategy to attract more registered nurses into aged care. This should include targeted training, scholarships, financial support, improved remuneration, public promotion campaigns, targeted immigration and working visa schemes, career pathway development and support with childcare and in some locations housing.
2.30
UnitingCare Australia similarly recommended that the new registered nurse minimum staffing requirements need to be supported by ‘a robust Government plan, co‑designed with the sector, to make more Registered Nurses available for recruitment into the aged care sector, particularly for regional and remote aged care services’.
2.31
National Aboriginal Community Controlled Health Organisation (NACCHO) advocated for more government and industry programs and funding that provide the following:
Support for enrolled nurses to upgrade their qualifications and nurses with lapsed registration to re-train and re-gain registration
Support for registered nurses working in other areas of health to move into aged care
Initiatives that increase remuneration for registered nurses in aged care to be commensurate with the acute and primary care sectors
Initiatives to attract and recruit overseas trained nurses
Initiatives to attract and support more people to train as nurses with a particular emphasis on Aboriginal and Torres Strait Islander people, people living in rural and remote locations and people from other diverse groups.
Initiatives that consider the role of Aboriginal Health Practitioners and upskilling.
2.32
Mr Ian Henschke of National Seniors Australia advocated for adjusting the rules relating to social security payments for retirees in order to enable retired nurses to take on shifts where there are staff shortages without having their pension payments reduced.
2.33
Ms Eliza Strapp, First Assistant Secretary, Market and Workforce Division, Department of Health and Aged Care, told the committee that the government has a range of measures intended to help support new nurses coming into the aged care sector, and incentivise nurses currently in the sector to remain. These include:
supporting a minimum wage increase for registered nurses and other aged care workers through the Fair Work Commission (FWC), including a commitment for the Commonwealth to fully fund any wage increase determined by the FWC;
increasing Commonwealth funded university places for nurses;
the Aged Care Workforce Bonus Payment, which delivered up to $800 in bonus payments to aged care workers in February and April 2022;
additional payments of up to $3,700 for registered nurses who work for the same aged care employer for between six and 12 months;
the Aged Care Transition to Practice program, which provides wraparound support for new nurses entering the sector, including specialist training in aged care and gerontological nursing and mentorship from senior aged care nurses; and
a range of Commonwealth funded nursing scholarships, administered by the Australian College of Nursing.
2.34
Ms Strapp also highlighted the support given to aged care providers through the government’s aged care Workforce Advisory Service:
We are also providing support to providers through the Workforce Advisory Service to assist them with how they might do workforce planning, how they might recruit, how they might assist their HR practices to attract more staff. This is very much being used by providers in regional, rural and remote areas, who might not have the level of skills to attract or to provide, I guess, employee value propositions to nurses.
2.35
Ms Strapp concluded that these measures together ‘are helping to boost the number of nurses in residential aged care to meet that requirement on 1 July and the care minutes into the future’.
2.36
Ms Sue Bellino, Political Director at the ANMF, told the committee that swiftly implementing the proposed reforms would assist in retaining nurses in the aged care sector:
Certainly from our perspective, stalling any reform in the process is not what should happen. It's exactly the opposite. We need to give our members, workers and residents some hope that there are improvements coming. They have worked through the pandemic. They're tired; it's physical and it's emotional. But, if they feel like there's some hope coming and there's some change, that's a great start to improvements in aged care.
Impact on aged care providers’ overall staffing models and service provision
2.37
In light of the significant workforce and funding issues facing the aged care sector, consumer advocates emphasised that the rollout of 24/7 registered nursing care must include oversight to ensure that the overall level of service provided to aged care recipients is not compromised.
2.38
COTA submitted that the implications of the measure in Schedule 1 ‘will need to be carefully monitored and assessed as it is likely to have differential effects across facilities within the sector’, with considerations including:
a potential increase in the number of providers operating below minimum standards due to the actual and/or perceived additional staffing, administrative and compliance costs of meeting the requirements; and
a reduction in non-nursing staff time, or diversion of resources, in substitute for nursing time, potentially resulting in negative impacts on the quality of care of residents, and potentially consequentially adding to the workload of registered nurses.
2.39
COTA commented further that registered nurse requirements ‘should be supported by effective care planning that can respond to urgent health needs or clinical decline at any time including overnight’:
To deliver essential quality care, it is important that the time registered nurses spend undertaking direct care is maximised and time spent on administration is minimised. The use of real time care planning, management and monitoring software is essential for efficiency and effectiveness, reducing administrative time and cost and should be incentivised. Measurements of nursing time resulting from legislation should be related to active clinical time not administrative time.
2.40
The Law Council drew attention to potential ambiguity in the drafting language used in the bill that would require a registered nurse to be ‘on site, and on duty, at all times at the residential facility’. In particular, the Law Council was concerned that this phrasing:
does not make it clear whether a registered nurse who is on a break during a shift would or would not be considered ‘on duty’; and
how the phrase ‘at the residential facility’ will be interpreted in scenarios where a facility is co-located with other services, where telehealth or similar technologies are utilised, or where there is a is a need for a nurse to leave the care facility in the performance of their duty.
2.41
The Law Council recommended that the bill be amended to define these terms more clearly, to provide certainty for providers.
2.42
The Australian Community Industry Alliance (ACIA) also commented on how the requirement to have a registered nurse ‘on site’ could be interpreted:
Onsite isn’t defined as within the defines of the specific facility, which is what ACIA would recommend (however sometimes challenged by multiple separate buildings which do occur). It could be utilised against the intent of the Act by one Registered Nurse being on the grounds of multiple large, aged care facilities on one site, as is the case in Anglicare at Castle Hill as an example.
2.43
Dr Nicole Brooke, CEO at ACIA, expressed concern at the potential for providers to work around the requirement as it is currently expressed:
I’m really concerned with being on-site—and, being a director of nursing at many facilities over my time—that there are lots of ways to manoeuvre around policy. We see that in current reporting—how they can exempt themselves to make sure the data looks better. I see a real opportunity for sites with five facilities on the one site. You can't say that they all have to be present in the building, because staff have breaks and smoking areas can be out of that facility in many cases. It really concerns me that those numbers aren't actually capped to what that level should be because, in the end, we can't rely on that with care staff doing the level of acuity management that we have.
2.44
The United Workers Union called for a care time monitoring mechanism to be implemented that actively involves the workforce at aged care facilities, to ensure that operators are held accountable to their reported compliance with minimum staffing standards.
2.45
The ANMF emphasised that the new requirement for a registered nurse on site at every residential care facility 24/7 ‘sets a minimum standard not a benchmark for best practice’:
It will be important that providers which currently staff to ensure that there is more than one registered nurse on site and on duty to meet the specific needs of their residents are not incentivised or encouraged to reduce staffing levels and skills mix to a mandated minimum. There are many instances where one registered nurse alone would not be able to deliver safe, effective, dignified care to residents (e.g. facilities where there are many residents and a high resident to staff ratio, residents with relatively higher care needs, or in facilities with layouts that do not enable one registered nurse to provide an appropriate level of care to all residents).
2.46
Estia Health commented that the new registered nurse requirements are likely to have an unintended consequence of making enrolled nurses (ENs) unattractive to the sector, as ENs ‘do not contribute to the registered nurse count of minutes and carers may thereby be preferred in the overall staff mix’. It argued:
Enrolled nurses play an important role in the delivery of clinical care in the aged care sector... The proposed policy has the potential to lead to highly experienced enrolled nurses exiting the aged care sector and being replaced by less experienced registered nurses from overseas or new graduates with no resultant discernible benefits.
2.47
Baptist Care Australia commented similarly that it anticipates providers ‘will need to exit some [ENs] in favour of RNs in order to fund the required minimum RN workforce’.
2.48
Estia Health proposed that to help address this issue, it could be specified that the mandated registered nurse minutes can include up to 25% of enrolled nurses, and that if this suggestion is not implemented, there ‘should be transition arrangements to allow enrolled nurses to upskill and retain their positions while doing so’.
2.49
ANWF expressed concern at the potential for providers to reduce the capacity of enrolled nurses, personal care workers or other services:
[W]ithout proper consideration of the vital roles and contributions of particularly enrolled nurses, there might be the potential for some approved providers to look to reducing the hours or employment of enrolled nurses to accommodate requirements to staff facilities with registered nurses as a way of cutting costs.
Similarly, cost cutting measures might also be employed by some providers through reducing costs for housekeeping and food services which would negatively impact the health, safety, and wellbeing of vulnerable residents.
2.50
NACCHO expressed significant concern about the effects of the new registered nurse requirements on the delivery of aged care to Aboriginal and Torres Strait Islander people. NACCHO stressed the importance of enabling Aboriginal community-controlled organisations such as Aboriginal Community Controlled Health Organisations (ACCHOs) to expand and become providers of aged care services, and noted that the Royal Commission made recommendations to this effect. It submitted that the introduction of 24/7 registered nursing requirements ‘will exclude many ACCHOs from joining the market’.
2.51
NACCHO commented further that the Aboriginal and Torres Strait Islander community-controlled sector is ‘already facing major workforce challenges, existing services are experiencing severe staff shortages and demand will soon outstrip supply of suitably skilled and job ready Aboriginal and Torres Strait Islander employees’. This shortage ‘will impact access to culturally appropriate, effective and efficient support and assistance for our communities’. NACCHO argued that in this context:
In order to meet the recommendations of the Royal Commission and the National Agreement [on Closing the Gap] and ensure Aboriginal and Torres Strait Islander people receive aged care from the most appropriate organisations, consideration must be given to alternative staffing models for services in urban, regional, rural, remote and very remote locations.
2.52
Anglicare Australia submitted that for some small or specialist providers, while they may be able to recruit and retain a registered nurse, ‘this could come at the expense of other staffing hours, which will reduce their flexibility to match support to the needs of their unique cohort’:
For example, for a small specialist homeless provider the resident population is on average younger and has lower clinical need than a large mainstream residential service (but more complex social and wellbeing needs). To maintain financial viability and meet the requirement for a full-time registered nurse, they will need to reduce the hours of care by enrolled nurses and require the registered nurse to take on duties more typical of a support worker or enrolled nurse, though paid at a higher rate.
Provision of allied health services
2.53
Submissions from allied health providers expressed concern that aged care facilities are curtailing the provision of allied health services in order to prioritise meeting the introduction of other minimum staffing requirements.
2.54
The Australian Physiotherapy Association (APA) submitted that it supports Schedule 1 ‘as a first step in addressing the inadequacies of current healthcare provision to aged care residents’, however these measures ‘do not provide certainty about ongoing access to allied health care such as physiotherapy’. Mr Scott Willis, National President of the APA, told the committee:
Even today we are hearing reports from a major provider telling us that up to 50 per cent of physiotherapists will be let go and there will be 50 per cent less physiotherapy within the aged-care facilities. Now, even before 1 October when the AN-ACC is coming in, we're hearing reports that contracts are being torn up and not renewed and staff are already being let go. I'd reiterate that, once you lose these qualified staff who have the passion and dedication and the knowledge of the full scope of practice of physiotherapy, it's going to be very, very hard to recoup that in the short term. It's a shame that we are losing them from that system, because they provide a great team environment and a great service to our most vulnerable.
2.55
Mr Alwyn Blase, Chief Executive Officer at Allied Aged Care, stated that there is currently no certainty around funding for allied health services in aged care beyond 1 October, and echoed the concerns of Mr Willis:
We're facing a generational loss of some experienced aged-care physios, and that is an absolute tragedy. You just heard Scott say that, about 50 per cent of a major provider. Well, I've had my team, and, through the skin of my teeth, I'm managing to keep everybody's jobs, and I will continue fighting for that, but it's not been easy. I promised everyone a year ago we'd keep their jobs, and I still keep that, because we can go and work in another area and make more money, but we want to work in aged care; we want to stay in residential nursing homes, and we can't, the way this is playing out right now.
2.56
Allied Health Professionals Australia (AHPA) submitted that under the new AN-ACC funding model, there is no guarantee that aged care providers will not reduce their expenditure on allied health in order to redirect funds to direct care and nursing services. It recommended a range of actions to be taken by the Commonwealth to ensure that the allied health care needs of aged care recipients are met.
2.57
Ms Lauren Palmer, National Research and Policy Officer at the HSU, also expressed concern that allied health care minutes may be reduced under the AN-ACC model and called for dedicated allied health funding and standards to be implemented.
2.58
Officials from the department expressed confidence that allied health services would continue to be provided under the new AN-ACC funding model. Mr Mark Richardson, Assistant Secretary, Residential Care Funding Reform Branch at the department, told the committee:
In terms of allied health, I think what I would say is that the funding will exist within AN-ACC, as it does under ACFI, for the provision of allied health services and that facilities are also required to provide those services under legislation. Allied health services are part of the quality standards, so the commission would be looking for the provision of those services as part of their regulatory action.
2.59
Mr Michael Lye, Deputy Secretary, Ageing and Aged Care at the department, supported this view, and queried the APA’s assessment in relation to the potential reduction of physiotherapy services:
I don't think we'd agree with [the APA’s] analysis, but we do understand that, with a new system and with the requirements under care minutes for those particular types of service to be increased, people are looking at that and they are worried about the changes. I think, as Mr Richardson is saying, if we saw reductions in the use of allied health at anything like the scale that the Physiotherapists Association are saying, that would, in our minds, put facilities in trouble in terms of their adherence to the quality standards. So that would be an issue for [the Commissioner] to look at. I do understand people are trying to grapple with a whole lot of changes, and we understand why they're looking at that and potentially worrying that they'll be worse off. We don't think that will be the case. We'll be watching very, very closely to see what the behaviour of facilities is, though.
2.60
The Aged Care Quality and Safety Commissioner, Ms Janet Anderson PSM, commented:
We watch closely, full stop. We have a monitoring brief across the entire sector and for particular services, and in particular we monitor those services which have a high-risk profile. Where we find shortcomings in care and poorer outcomes for consumers, we track that back and reach an understanding of how that is the case. Sometimes it is a shortage of allied health input, sometimes it is to do with other profiling issues in relation to staffing and sometimes it is to do with numbers and capability in terms of their training requirements…We are watching closely, and we will certainly be looking at a system level and also in relation to individual providers and services.
Exemptions to the new registered nurse requirements
2.61
As noted in chapter 1, Schedule 1 of the bill includes a provision enabling the Minister to create exemptions to the new registered nurse requirements, through delegated legislation, the Quality of Care Principles.
2.62
The Explanatory Memorandum to the bill notes that the inclusion of provisions for exemptions from the registered nurse requirements ‘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.
2.63
Submitters and witnesses made a range of comments on the potential scope for exemptions and how these should be set out in the Quality of Care Principles.
2.64
The Law Council made several suggestions for amendments to modify the clauses in the bill enabling exemptions to be granted, in order to:
clarify who will be the statutory decision makers in relation to exemptions;
either prescribe the circumstances in which an exemption may be granted in the Quality of Care Principles; or limit the exemptions power such that an exemption could only be granted if it still ensures the ongoing availability of clinical care and ensure a high quality of care; and
consider providing a mechanism which enables an approved provider to seek merits review of a decision not to grant an exemption.
2.65
ACCPA argued that the bill should not be passed until there is clarity on the specific content of exemption and safe harbour provisions, ‘so that organisations in regions where there are clear shortages, or that have taken all reasonable steps to comply, are not unfairly punished’.
2.66
ACCPA also argued that exemption rules ‘should include a time limited general exemption for all areas of demonstrated staff shortages, subject to those organisations ensuring they have other mitigations in place’. It recommended further that the department ‘should publish data on 24/7 coverage (from the 2020 Workforce Census) by ACPR and remoteness level to support evidence-based discussion of exemption criteria’.
2.67
Aged care advocates emphasised that any exemptions regime must be tightly focused in order to ensure that better care for aged care residents is actually realised. For example, National Seniors Australia submitted:
While we acknowledge there will be exceptional circumstances where an exemption to the requirement to have a nurse on duty at all times could be justified, we would be concerned if this exemption was used as a means to avoid providing adequate care to older Australians in residential care. We would not accept this in a hospital and aged care homes as stated earlier are becoming more and more high care, dealing with end-of-life issues requiring skilled medical care on site.
As such, it is vital the parameters of any exemption set out in delegated legislation is not open to misuse. The needs and care of the residents must be paramount. Adequate funding for aged care providers under exceptional circumstances should be provided to ensure nursing care is available.
2.68
COTA expressed the view that an exemption should ‘only be granted for a specified period of time, which we suggest be 3 months, with the ability to apply for subsequent extensions’, in order to ‘provide an incentive for providers to meet the staffing arrangements in an appropriate time frame and…help ensure that exemptions are only provided when they continue to be justified’. It stated further:
There should be strong guidance in the Quality-of-Care Principles about what constitutes acceptable grounds for an exemption and the types of conditions that should accompany such exemptions. This should not be left entirely to the regulator’s discretionary judgement, although obviously some degree of such discretion is also necessary within guidelines.
2.69
Aged Rights Advocacy Service (ARAS) commented:
[A]ny exemptions must be time limited, with those exemptions being subject to legislative review at a maximum of three years’ time taking into account the challenges in building the required capacity within the system. ARAS recommends that exemptions must be monitored, reported to the Parliament annually, and made publicly available to prospective and current aged care residents as well as the general community. Virtual technology should be considered as an option to link health professionals, as long as outcomes for residents are not compromised.
2.70
Dr Brooke of ACIA emphasised the importance of having transparency measures in place, both for the public and the sector, around what exemptions have been granted and what risk management processes are in place for facilities operating with an exemption.
2.71
NACCHO submitted that the process for formalising exemption arrangements is ‘an opportunity to consider alternative models of service delivery and staffing’ including based on considerations such as:
Co-location of aged care services with health clinics, for example Aboriginal Community Controlled Health Organisations clinics or Multipurpose Services.
Reducing the costs of recruiting and retaining RNs in rural and remote locations by sharing clinical staff with other services/clinics.
Considering the need for services that deliver care to people from diverse groups to ensure that residents receive care from staff who understand their specific cultural and health needs.
Services that struggle to recruit registered nurses, may be able to recruit greater numbers of enrolled nurses or Aboriginal and Torres Strait Islander Health Practitioners who also provide high level health services and supervision/mentoring of staff.
2.72
With these considerations in mind, NACCHO proposed a detailed two-tiered approach to exemptions, with: ongoing exemptions given to providers in remote or very remote communities that can meet alternative requirements (such as 24/7 access to a medical professional able to attend the site when required); and exemptions able to be requested from services in other areas if there are demonstrated staff shortages and access to other medical professional services can be maintained.
Exemption in emergency events
2.73
NACCHO submitted that the bill does not make provision for instances where providers cannot meet the requirements due to exceptional circumstance and emergency events, and recommended that the bill be updated to allow providers to seek an exemption when: a nurse is unable to attend their shift due to illness or resigns with no notice and no replacement can be found at short notice; exceptional circumstances limit staff attendance, such as during pandemic events or other emergencies such as natural disasters.
2.74
NACCHO suggested that there should be provision ‘for providers to report when these events occur and be provided with a temporary exemption’, and stated that a cap on the number of days that a provider can claim an exemption under these circumstances ‘might be considered to ensure providers do not use this mechanism to avoid the new requirements’.
Departmental evidence on potential exemptions and consultation process
2.75
The department noted that the bill ‘allows for, but does not require, criteria for exemptions to the requirement to have a Registered Nurse on site and on duty at all times to be detailed in subordinate legislation’. It commented:
The Department is aware that some facilities may find it difficult to recruit additional registered nurses to meet this requirement. However, the Department is also keenly aware that the Royal Commission found unacceptable staffing levels in over half of all residential care facilities. The Government has committed to consulting widely before determining whether exemptions should be incorporated into subordinate legislation, and if they are to be incorporated, what they would be. Any exemption would be tightly targeted, for example, for rural and remote, time limited and require providers to demonstrate that they have arrangements in place to ensure the quality and safety of residents.
2.76
The department submitted that it will ‘consult experts, unions, and the aged care sector to determine whether and on what terms exemptions may be appropriate’ and provide advice to government on this matter ‘in the second half of 2022’, with the aim to have the exemptions regime in place by April 2023. It stated that the government ‘is also consulting on alternative arrangements for the provision of 24/7 RN care such as on-call arrangements’.
2.77
Ms Metz from the department commented further in evidence to the committee:
The design of the legislation, with the obligation in the principal legislation and the exemption framework outlined in subordinate legislation, is quite deliberate. As you know…there is a diversity of views on how an exemption framework should operate, in what circumstances it should operate, how long exemptions should be and whether the exemption framework should change over time. It's appropriate for that level of operational detail to be provided in subordinate legislation so that, if circumstances change and workforce needs change over time, the amendments can be made to subordinate legislation. I'll just note, as well, that it will be a disallowable instrument, so it will be tabled and subject to the disallowance process as well.
Proposed approach to compliance and enforcement
2.78
Submitters emphasised the importance of the new 24/7 registered nurse requirements being properly monitored and enforced, including any exemptions granted. For example, Estia Health commented:
We note and accept the proposal to create an exemption regime as recommended by the Royal Commission. Our observation in this regard is that the Aged Care Quality and Safety Commission should rigorously enforce the application of the exemption provisions. To do otherwise would create the risk of a two-tier system where some consumers are denied the protections of an on-site nurse.
2.79
When asked whether aged care facilities that breached the new registered nurse requirements would be subject to penalties, Ms Melanie Metz, Assistant Secretary, Legislative Reform Branch at the department, explained:
There are no particular penalties attached to the requirements. If a provider doesn't meet the obligation, there will be reporting, on which the commission will have a view and determine when it's appropriate to take action, and it would be the commission's ordinary process of enforcement and compliance that would apply. There's no particular penalty attached to the obligation.
2.80
The Aged Care Quality and Safety Commissioner, Ms Janet Anderson PSM, explained to the committee what the regulator’s approach would be:
[A] provider either will have 24/7 cover or won't, but the consequences of not having it are a matter for the regulator—the commission I lead—to judge in the context of broader risks. We're not just interested in the setting; we're also interested in the outcome. If the absence is temporary and there are alternative arrangements in place which ensure timely access to required clinical input to decision-making and addressing of care needs then it may be that there is no consequence beyond us talking with the provider and saying, 'Right, please confirm your plans to replace or recruit to that position and what the timetable is, and come back to us the minute you've done it.' And that may be the extent of it. Alternatively, if there is an absence of effort to ensure that there is a full roster of 24/7 RN cover, and the provider seems relatively uninterested in addressing that requirement, we are more likely to take a more considered view and probably either require them to act very quickly in a particular way or, depending on the other circumstances, issue a noncompliance notice which then places certain obligations on them to make good, as it were, the oversight or the absence in a particular time, and we will certainly monitor their achievement of compliance with this requirement.
Implementation timeline for Schedule 1
2.81
Under proposed subsection 54-1A(2) of the bill, the new requirement for providers to have a registered nurse on duty at all times will commence from 1 July 2023.
2.82
This timeline varies from what was proposed by the Royal Commission, which recommended that from 1 July 2022, the minimum staff time standard should require at least one registered nurse on site per residential aged care facility for the morning and afternoon shifts (16 hours per day) with the requirement for a registered nurse to be on site at all times commencing from 1 July 2024.
2.83
Older Persons Advocacy Network (OPAN) expressed support for the implementation timeline in the bill:
OPAN strongly supports the requirement that Registered Nurses must be on site and on duty at all times (that is, 24 hours each day, 7 days each week).
While we acknowledge that the Royal Commission…recommended one registered nurse be on staff for both morning and afternoon shifts (16 hours per day), increasing to all day from 2024. OPAN believes a registered nurse should be available 24 hours per day as soon as possible rather than delaying implementation. The increasing health complexity and comorbidities of older people entering residential aged care requires a corresponding need for staff with the right health and medical skills to provide support. We know that health related incidents don’t just happen in the day time.
2.84
Some aged care providers argued that a longer implementation timeframe is required. UnitingCare Queensland proposed a transitional timeframe to align RN requirements with the broader care minutes implementation timeline. NACCHO argued for a staggered implementation timeline, as follows:
1 October 2023: requirement for residential aged care services to have a registered nurse on site and on duty 16 hours a day.
1 October 2024: requirement for residential aged care services to have a registered nurse on site and on duty 24 hours a day.
2.85
NACCHO commented that this lead time ‘ensures that providers have an adequate number of staff to meet the minimum requirement and can accommodate staff absences’.
Other issues raised in relation to Schedule 1
2.86
Palliative Care Australia (PCA) expressed support for the proposed requirement for a registered nurse be on site and on duty at all times at each residential aged care facility. PCA advocated that these registered nurses must be trained in palliative care ‘as a key building block of this policy’, and stated that it ‘would welcome any amendments [to the bill] that support the RNs working in Residential Aged Care to have training in palliative care’. PCA submitted:
Currently, over one third of all deaths in Australia occur in residential aged care facilities. As Australia’s population ages, the number of people using aged care services will further increase as will the demand for palliative care in both community and residential aged care.
2.87
Noting that the Royal Commission recommended the implementation of compulsory dementia and palliative care training for aged care workers (Recommendation 80), PCA argued that RNs ‘must be trained in minimum levels of core competencies to provide care for people with a life-limiting illness with straightforward needs’.
2.88
The issues of which ‘flexible care’ providers will have to meet the new RN requirements was also raised. Under subparagraph 51-1A(1)(a)(ii) of the bill, the new proposed registered nurse requirements will apply to approved providers if they provide ‘flexible care of a kind specified in the Quality of Care Principles to care recipients in a residential facility’.
2.89
NACCHO expressed concern that there is ‘[n]o detail on which flexible services will be subject to the new requirements’, and submitted that further clarity is required around the types of flexible services that will be subject to these requirements (for example, whether they will apply to National Aboriginal and Torres Strait Islander Flexible Aged Care services and Multipurpose services).
Schedule 2 of the bill—Capping home care charges
2.90
As noted in chapter 1, Schedule 2 of the bill seeks to amend the Aged Care Act to:
introduce a new responsibility on providers of home care services not to charge ‘exit fees’ when a care recipient leaves their service; and
require home care providers to comply with requirements specified by the Minister in delegated legislation, the User Rights Principles 2014 (User Rights Principles), in relation to the prices charged for home care services.
2.91
The department stated that the amendments made by Schedule 2:
…aim to address findings by the Royal Commission that up to 50 per cent of some Home Care Package funds were directed to administration and management costs. Capping the amount that can be charged for administration and management will increase focus on the direct care needs of older Australians.
2.92
The department submitted that it has undertaken consultation with relevant stakeholders in July and August 2022 ‘to understand their views, explore issues and risks, and hear their ideas for how best to implement these changes’. A survey for stakeholders and further consultations will now continue, to ‘inform the subordinate legislation and guide how these amendments will be implemented and communicated to the sector’.
2.93
The changes to home care charges proposed in the bill come in the context of the government committing to a broader overhaul of in-home aged care, to be developed and implemented by 1 July 2024.
2.94
Submitters and witnesses expressed support for the intention to cap home care charges, citing examples where home care providers had imposed manifestly excessive administrative and management charges, limiting the ability of care recipients to access sufficient funding for actual care services. COTA submitted:
Currently, many home care consumers are confused and angry about fees and charges including payments that they are not aware of, do not relate to the services they are receiving and/or are changed without communication. Confusion and anger particularly relate to ‘administrative’ or ‘brokerage’ type fees for care management and package management.
2.95
Ms Edmonds of OPAN, told the committee that older people being subject to excessive home care charges is ‘a constant issue that comes up through our advocacy work’:
Fees and charges, as well as statements outlining the fees and charges, come up as the most common issue that is raised with us. We often hear of charges whose application people can't understand, and that example is just one of the many examples that we see. It's obviously excessive and there is no reasonable means for determining that that is what should be charged. So that is something that we're really concerned about and that older people are really concerned about.
Ministerial power to set requirements for home care charges
2.96
The intention of the new ministerial power in relation to home care charges is to ‘enable the Government to take action to cap package funding directed to administration and management and ensure older Australians don’t miss out on the care they need to keep living at home’. The department submitted that these amendments:
…will allow for delegated legislation to specify requirements about the prices charged by home care providers for, or in connection with, the provision of care services to the care recipient. This includes care and package management charges, charges for direct care services and charges for brokered services.
2.97
The department explained the different cost components of home care packages as follows:
Under the Home Care Packages Program some administration and management costs are charged separately (for example, care and package management, exit amounts) 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 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.
While both care and package management are important to the quality and safety of home care services, we need to ensure charges for administration and management are reasonable as these charges reduce the funding available for direct care needs.
Need to ensure benefits of any capped charges are realised by consumers
2.98
Several submitters emphasised that the structure of any caps on home care charges need to be carefully considered to ensure that these charges are not simply redirected elsewhere in the cost structures charged to home care recipients. Palliative Care Australia stated:
PCA is supportive of the intent of these amendments and note that they will benefit many people receiving palliative care and their families and carers. Measures will need to be in place to ensure that services are not reduced or limited by providers (or charged for in other ways) to recoup perceived lost earnings.
2.99
OPAN submitted that ‘[i]n implementing a cap on administration and case management fees, a mechanism needs to be developed to prevent cost-shifting to direct care costs’:
Older people are concerned that providers will find another way to recoup funds by increasing what they are charged for services. Providers are expected to communicate cost changes to consumers, and consumers have to consent to the increased fees. However, if this is a service the consumer needs or there is no other provider that can provide the service the consumer has to consent to the increase or face losing a needed service.
There is also a potential for some providers that currently have low admin/case management fees but high direct care service costs to increase their admin/case management fees to meet minimum the cap requirements. They could then tell consumers that the Government has set/initiated this price increase. Therefore, there must be clear messaging by the Department of Health and Aged Care that the cap is the maximum amount and providers can charge less than this.
2.100
COTA commented that over recent years, some providers that were identified publicly as having higher than average administration costs ‘have subsequently reduced those nominal fees but transferred the balance to a markup on their hourly direct care fees’. As such, capping administration and care management fees ‘needs to look across to the implications for direct care fee charges’, otherwise ‘consumer complaints will justifiably continue and indeed probably increase’.
2.101
COTA submitted that the terms ‘care management’ and ‘package management’ are not clearly defined, and recommended that the subordinate legislation should include a list of permissible items that can be attributed to care management and a list of permissible items that can be attributed to package management. ANMF commented similarly:
[I]t will be vital to ensure that the right items are identified as administration, management, care management and direct costs and that the differentiation between these categories is clear to providers and stakeholders including consumers. Without sufficient guidance and clarity, providers will find it challenging to determine what costs belong where and this will lead to inaccurate and unusable reporting and opaque oversight.
2.102
National Seniors Australia commented further on the need for more clarity in the User Rights Principles, transparent decision making around price caps, and system flexibility:
[G]iven that the amendment relies on delegated legislation to cap charges, there must be adequate scrutiny of the User Rights Principles under which this will be set. Under the current User Rights Principles the wording is undefined and inadequate. An approved provider of home care must only charge prices that are “reasonable”… For the amendment to be effective, there will need to be stronger guidance within the User Rights Principles in relation to the price caps, including the role of the new Independent Health and Aged Care Pricing Authority in setting caps on charges.
It is vitally important the processes used to set caps on home care charges are transparent and robust. We would be concerned if the processes used to set caps on home care charges were open to undue influence.
Equally, we are conscious of the need to ensure a degree of flexibility to account for circumstances of market failure, such as in regional, rural and remote areas where service delivery costs are often higher. These circumstance should be adequately accounted for when setting price caps.
2.103
COTA also emphasised the need for greater transparency in how fees are set and charged:
The future independent price setting arrangements must include transparency on all fees and charges including administration fees. Consumers should be aware of staff wages and on-costs being paid for their workers, separate from overheads and other administrative costs.
Consistent approaches to travel costs must be applied as part of any independent pricing system. Acceptable costing of changes to planned arrangements should also be clear to consumers upfront (e.g., cancellation costs).
COTA Australia has regularly stated that client contributions and unit pricing should be equitable and adequate to meet consumer needs and provide measurable high-quality care. To enable pricing transparency, comparability and fairness, a single unit pricing model should be implemented where administrative and management costs are transparent and incorporated into a single unit price for services or a bundle of services.
2.104
The ANMF cautioned that costing caps must ‘be determined carefully to ensure that providers are able to deliver safe, high-quality, dignified care to recipients’:
If fee caps are too low, the delivery of care will be put at risk by providers seeking to reduce costs. This is because staff wages are a large component of provider costs and reducing staff time to deliver care or requiring staff to care for a large number of recipients may be implemented to save money.
Considerations for home care providers
2.105
Home care providers raised several considerations and concerns in relation to the implementation of this Schedule.
2.106
ACCPA expressed concern about the broad power to set or regulate charges introduced by the Schedule. It submitted that it ‘supports targeted rules to prevent unreasonable outlier administration and management fees, but not changes that would require a wider restructure of home care prices’, and stated:
We are therefore concerned that the proposed legislation would grant the Government an unlimited power to regulate all home care prices—especially as it is not yet clear what approach Government intends to take to the implementation of its election commitment.
2.107
ACCPA acknowledged ‘that some older Australians have raised concerns about administration and management fees’, but submitted that:
published pricing data shows that there are a wide range of different providers at different prices points to choose from in almost all Aged Care Planning Regions;
overall administration and management fees are already lower than administration and management costs;
regulating administration and management fees will not eliminate the associated costs but instead mean that these costs will be recovered through higher hourly rates (noting the people who use the most hours of care are usually the people with higher needs who may already be using all their package funds); and
care management is a service and should not be grouped with package management.
2.108
ACCPA recommended that:
Price caps should be limited to outliers and implemented as part of the next annual price cycle to avoid creating additional mid-year administrative costs.
There should always be capacity to charge for additional case management based on individual need.
People who want to choose providers with lower management and administration fees should be supported to do so by having an option to filter My Aged Care results by management and administration fees.
2.109
UnitingCare Australia commented:
Different Home Care Package Levels are subject to detailed schedules, beyond a single pay point per level, to reflect a range of service needs. If the pricing is too narrowly prescribed then models of care will be impacted, there is also potential to undermine facilities ability to meet the aged care standards especially given other present and forecast pressures. The costs associated with service delivery are often greater outside urban and metro areas.
2.110
UnitingCare Australia recommended that home care charge caps should be scheduled in detail to reflect home care package level, and location where services are being delivered.
2.111
Anglicare Sydney argued that the fee caps must take into account the costs required for providers to implement new IT systems and raise the professionalism of care, and that any cap ‘should be regularly reviewed to ensure it is not driving unintended consequences but rather is driving material improvements in care’. It explained further:
Anglicare Sydney agrees that egregious home care administration fees are unacceptable, and reform is necessary. However, if the quality of home care is to also be improved, as it must be, then the new administration fee must be set at a level to permit providers to implement necessary new IT systems and to professionalise the provision of care. We recognise that there are some providers who have exploited the system in the past to charge unconscionably high administration fees. Providers such as Anglicare have set our administration fees to cover the implementation of new IT systems, quality oversight, ongoing investment in recruitment, training and service improvement. The design of any cap must appropriately reward and incentivise prudent investment in improving care while at the same time preventing unscrupulous providers from diverting funds from client need.
Professional care will mean clients will experience coordinated and better care, with greater accountability and oversight. These changes will be expensive. The sector will not be able to meet either regulator nor clients expectations if these changes do not occur.
Prohibition on ‘exit fees’ charged by home care providers
2.112
Submitters to the inquiry expressed strong support for the removal of exit fees for home care services. For example, National Seniors Australia submitted:
National Seniors Australia strongly supports banning home care exit fees. Exit fees are not in the spirit of home care. Exit fees are used in commercial contracts to recover the costs of breaking a contract, however it is widely recognised they curtail consumer choice. They are often regulated in areas, such as banking, in recognition of their anti-competitive nature.
Older Australians who are sensitive to cost pressures would likely view exit fees as a barrier to moving to another provider, even where they are unhappy with the services being offered. They are therefore totally unacceptable in public service delivery settings such as home care.
2.113
The department stated that this amendment ‘will promote consumer choice of home care provider as well as ensure unspent funds are directed towards care rather than administration’.
Schedule 3 of the bill—Transparency of information
2.114
The amendments in Schedule 3 introduce a requirement for the Secretary of the department to publish information in relation to aged care services and approved providers, that will be specified via delegated legislation through the Information Principles 2014 (Information Principles).
2.115
The department submitted that the government ‘will publish the information in a way that is easy to understand, standardised, and enables easy comparison between services and providers’.
2.116
The ACCPA expressed concern that the detail of what information is to be published is not contained in the bill itself:
[This Schedule] appears to be a ‘broad head of power’, rather than one outlining specific information disclosure requirements.
It is concerning to us that such a general power would be given to disclose information. We are concerned there may be limited Parliamentary scrutiny of the disclosure measures introduced.
2.117
The ACCPA recommended that the passage of this schedule of the bill should be delayed ‘until there is greater clarity about what should be disclosed’.
2.118
The department explained the rationale for leaving the details of information to be published to be specified in the Information Principles, rather than the Aged Care Act itself, as follows:
Specifying the information that the Secretary must publish in the Information Principles provides an opportunity to consult with older Australians and aged care providers on the exact information to be published, how frequently it will be updated and how it will be displayed. It also 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, carers, and other members of the public. Specifying the information to be published in the Aged Care Act 1997 would significantly reduce the ability to amend what information is published over time based on ongoing feedback from older Australians on what is most valuable to them.
2.119
The department noted that the information to be published under this amendment ‘will be informed by consultations with older Australians and other stakeholders’, but 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.
2.120
The department stated that ‘the exact information to be published, frequency of updated information and how it is displayed will be informed by consultations with older Australians and their families’. It noted that these consultations began in July 2022 and ‘are expected to be completed prior to the Information Principles being amended by 1 December 2022’.
2.121
The department noted several considerations that would go towards determining the format and type of information published, including:
identifying how information should be published to best enable comparison between services; and
publishing financial information from providers in a way that is easy to interpret, accounts for variations in the characteristics and size of different facilities, and does not unduly compromise commercially sensitive information from providers.
2.122
Ms Strapp from the department explained further:
We're looking at how we present it in a way that's understandable and comparable. So, for example, we might want to include the cost per bed of a registered nurse—so the per head cost for a facility; how much they're spending on a registered nurse—and then be able to benchmark that against like facilities so that you're not comparing a big facility with a small facility and unfairly disadvantaging, say, a small facility, where they might have a different staffing profile or a different staffing profile need, allowing the consumer to compare one facility with a like facility and say, 'Well, I can see how much they're spending on registered nurses. I can see how much they're spending on food per person as well,' or how much they're spending on allied health, and we can break that down by the type of allied health professional as well.
Support for transparency and reporting measures
2.123
Several submitters expressed support for the intent of this schedule to provide greater transparency and increase consumers’ ability to compare the performance of aged care providers. COTA submitted:
COTA Australia fully supports this measure and views this as a particularly high priority for consumers, for which we have [been] arguing for many years. Short term implementation will also provide a baseline for measuring government progress on reforms from the perspective of consumers.
Clear, consistent, timely and transparent information about the amount of money a provider is paid for and spends on a service should be available to inform consumer service choices and decisions.
It is also important for consumer and public confidence in aged care that clear information about the amount of money that a consumer must contribute towards the services they receive is provided.
2.124
National Seniors Australia echoed these comments, arguing that transparency is critical to restoring faith in aged care services following the Royal Commission:
It is essential older Australians, and their families can make informed choices and advocacy organisations, the public and media can independently scrutinise provider activities. Taxpayers need to know the bulk of the billions allocated is spent on care and are not syphoned off to provide undue profits or cross subsidise other activities undertaken by providers.
2.125
Baptist Care Australia submitted that it welcomes ‘any measure that increases the transparency of aged care services’, stating:
Transparency promotes trust. As not-for-profit providers, we can offer members of the government and the Australian public with a wide range of insights into the costs and mechanisms involved in providing aged care. Opening up our records, in line with relevant privacy protections, will help to rebuild confidence in the sector.
Types of information to be included for publication
2.126
Submitters provided a range of suggestions on what types of information should be included in the Information Principles, and what publication formats should be considered.
2.127
The ACCPA submitted that it is ‘on record supporting improved transparency and accountability’ and is ‘not averse to the concept of some information being published’, however:
The key question is what information would materially improve a person’s decision making (i.e. help them make an informed choice) when deciding which aged care provider to select, whether for home care or residential aged care.
2.128
ACCPA recommended that disclosure ‘should be limited to the key information that will support decision making, and appropriately benchmarked so that fair comparisons can be made’. It argued that in this context, ‘there seems little cause to publish the names of key personnel’ of aged care providers.
2.129
The ANMF submitted that the information and data published ‘must reflect the differing needs of those who use it, e.g. consumers, workers and regulators and must be accordingly structured and available’. It provided a list of information it believes should be included for publication relating to detailed workforce statistics at aged care providers.
2.130
APA argued that information published by the department should include details ‘about the provision of each type of health service and not limit reporting to the umbrella term of allied health’, noting that allied health represents a broad range of professions. APA provided a detailed list of information it considered should be published in relation to allied health provision in aged care .
2.131
Dr Brooke of ACIA noted that there are risks associated with poor quality data being provided by aged care operators, undermining the effectiveness of new transparency measures:
[T]here's evidence within the home-care package review—the paper has now been released—that shows, just in the home-care sector, even with the transparency of those reports that are meant to be published, there's actually very low consistency in the accuracy and timeliness of that published information considering what they actually found was being done in terms of administrative costs, exit fees and entry fees. So, even just from one sector in aged care, we're seeing quite a huge discrepancy in the actual validity of what's being published.
Other issues raised by aged care providers
2.132
Some aged care providers argued that any additional administrative costs to providers arising from increased reporting requirements need to be carefully considered. UnitingCare Australia submitted that transparent reporting ‘is both vital and expensive’, noting that the recent implementation of the Quarterly Financial Reporting regime ‘cost one agency within our network over $1 million with ongoing compliance in excess of $500,000’. It recommended:
Reporting requirements should be as efficient as possible.
The department should review all provider reporting requirements and provide funding to support transitions to new, or changes in, reporting requirements.
The Government should maintain close understanding of administrative costs across the range of provider types to ensure the administrative burden is minimised and care dollars are maximised.
2.133
UnitingCare Queensland recommended that the department should be required to undertake ‘detailed analysis of the cost to aged care providers on all new disclosure requirements and be required to consider the cost-benefit vs other possible measures through consultation with the sector’. It submitted that ‘there are better ways to encourage aged care providers to provide better standards’ including:
standardising levels of cleaning for cleaning rooms and facilities;
financial incentives to invest in IT systems to show residents care, nursing, food, maintenance and cleaning tasks being completed and access to their records; and
extending the regional and remote Fringe Benefits Tax exemption to meals provided to residential aged care staff with on-site kitchen facilities.
2.134
Ms Metz from the department clarified that there should be no additional reporting costs for providers arising from Schedule 3 of the bill, as the provisions relate to the publication of data by the department, not the reporting of data by aged care providers:
The bill requires publication of information. The other side of that is reporting, which is dealt with elsewhere. There are no new reporting requirements under this bill; they're just new publication requirements. If new reporting requirements come in, we will need legislative amendments for that, and we'll have to do regulatory impact statements at that time.
Senator RUSTON: So there should be no additional costs?
Ms Metz: It's a publication requirement for the department.
2.135
ACCPA submitted that that proposed changes in Schedule 3 ‘would indemnify government from losses that may result from the publication of information, noting that this would appear to include cases where government published false and misleading information’. It recommended that this indemnity ‘should exclude situations where Government publishes false or misleading information’.
2.136
ACCPA also submitted that it is ‘important that expectations for increased transparency apply to both Government and providers’. It recommended that, in order ‘to show its own commitment to transparency’, the government ‘should amend the Bill to require the publication of all recommendations made by the newly established Independent Hospital and Aged Care Pricing Authority’.
Committee views
2.137
The findings of the Royal Commission into Aged Care Quality and Safety provided a roadmap for fundamental reforms needed to overhaul the aged care sector in Australia and ensure that older Australians are afforded the dignity and care they deserve.
2.138
A new Aged Care Act is being drafted to support the Royal Commission’s key recommendations, with this milestone legislation due to be introduced in 2023. While this significant process is underway, several urgent reform measures are being implemented through amendments to the existing legislative framework. The Aged Care Amendment (Implementing Care Reform) Bill 2022 (the bill), which is the subject of this inquiry, along with the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 which passed through the parliament in early August 2022, implement these urgent reforms.
2.139
The committee notes that submitters and witnesses that gave evidence to the inquiry were strongly supportive of the bill’s aims to introduce increased minimum staffing requirements for Registered Nurses in aged care (Schedule 1), remove exit fees and cap other charges for home care (Schedule 2) and increase transparency through the publication of information about the financial and operational performance of aged care facilities (Schedule 3).
2.140
The need for 24/7 registered nurse coverage in aged care facilities was emphasised by the Royal Commission and by those who presented evidence to this inquiry. The lack of round-the-clock nursing care at some aged care facilities has caused negative health and wellbeing outcomes for residents, including unnecessary hospital admissions and, in some cases, preventable suffering and death. Moving to 24/7 registered nurse coverage is a critical and overdue measure which will improve outcomes in the aged care system.
2.141
The committee notes evidence from aged care advocates that excessive home care charges are a constant issue raised by older Australians, with many experiencing confusion and anger at the way charges are structured and communicated, and exorbitant administrative charges significantly reducing the amount of direct care that home care recipients can access. The committee considers that the measures in Schedule 2 of the bill will enable the government to address this issue and provide better support for home care recipients.
2.142
The committee heard that increasing transparency is critical to restoring faith in the aged care system. The changes in Schedule 3, which will enable the publication of a range of performance and financial information about aged care providers, were described by aged care advocates as a particularly high priority for reform. The committee also heard from aged care providers that welcomed increased transparency, as a means of promoting trust and rebuilding confidence in the sector.
2.143
The committee considers that the measures contained in all three schedules of the bill are important, positive reforms that should be implemented without delay.
2.144
The committee notes concern from some in the aged care sector that important details about the implementation of registered nurse requirements (including potential exemption arrangements), capping of home care charges, and the publication of information from aged care providers, are still to be finalised through the release of subordinate legislation.
2.145
The committee accepts that these measures require some operational flexibility, which will be enabled through the use of subordinate legislation, and that the drafting approach taken with this bill is consistent with current practice in aged care legislation.
2.146
Further, the committee notes that all of the relevant subordinate legislation will be disallowable instruments, enabling parliamentary scrutiny to occur before the regulations can take effect.
2.147
The government has provided initial guidance on the matters to be included in the relevant regulations through the explanatory material accompanying the bill, and the details to be included are also informed by the recommendations of the Royal Commission.
2.148
The committee notes the department’s evidence that consultation with the sector is already underway to determine the final content of the regulations. The government has made its intention clear that consumers, aged care providers and other stakeholders in the aged care sector will be afforded the opportunity to contribute to shaping these discussions so that the final regulations are workable for the sector and provide better outcomes for aged care recipients.
2.149
In relation to allied health care, the committee notes the concerns expressed by some stakeholders that the introduction of the new AN-ACC funding model in October 2023 will result in a reduction in the provision of allied health services to aged care residents. The committee notes the department and the Aged Care Safety and Quality Commissioner both gave evidence that aged care providers will still be required to provide appropriate allied health services under the new model, and that providers will be closely monitored to ensure that these obligations are being met.
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Submitters raised some issues with technical drafting matters in the bill (for example, requesting greater clarity around how the phrase ‘on site, and on duty’ in Schedule 1 will be interpreted). The committee considers that the government should consider the technical issues raised and consider if any further action is required to avoid any potential unintended consequences.
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The committee recognises that the implementation of the reform measures enabled by the bill will require significant actions by government, the regulator and all participants in the aged care sector. In particular, the committee heard that that the introduction of 24/7 registered nurse requirements for aged care facilities will require significant new funding investment from government, as well as the development of targeted workforce strategies and greater resourcing for the Aged Care Quality and Safety Commissioner to monitor and enforce compliance with the new requirements.
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The committee is reassured by the evidence presented from the department that concerns raised in evidence are well understood and will continue to be addressed through extensive consultation. The committee also recognises the government’s further commitments to increase funding for the sector, to help build an aged care system to deliver the care that older Australians deserve.
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The committee believes the bill is a positive reform measure that will deliver valued outcomes for participants in the aged care system. It is an important step towards addressing the aged care crisis and implementing the urgent recommendations of the Royal Commission into Aged Care Quality and Safety.
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The committee recommends that the bill be passed.
Senator Marielle Smith
Chair