Attwood Marshall Lawyers Wills and Estates Senior Associate Larisa Kapur, an Accredited Aged Care Professional, discusses the latest news and developments that are impacting the aged care sector.
More time to give feedback on new Aged Care Act
The deadline for voicing views on the draft Aged Care Act has been extended until 8 March 2024.
The consultation has been open to aged care providers, workers, volunteers and researchers, as well as older people, their families and carers, since December when the government released a draft Bill running to 347 pages. A “plain English version” was also published, which summarised the key changes in a much shorter 36 pages.
Stemming from recommendations in the Royal Commission into Aged Care Quality and Safety, the new Aged Care Act is centred on the rights and needs of older citizens.
It will make several changes to Australia’s aged care system, including overhauling the assessment process for those entering aged care facilities. There will also be a new registration system for aged care service providers and the digital platforms that help connect older people with providers. New obligations and duties are being placed on registered providers and their staff, including by taking reasonable steps to avoid harming the health and safety of older people in their care.
The health department aims to introduce the Bill to Parliament later this year. The new requirements – including changes to the governance and regulation of the industry – will be delivered in a phased approach, allowing time for the government to keep consulting on the looming home care reforms.
The initial consultation period was due to run until 16 February 2024, but the new date of 8 March 2024 was implemented after respondents asked for more time to review the draft, citing its importance to the entire aged care sector.
Some reforms aren’t hitting the mark in public consciousness
According to a recent survey, the industry reforms that older people, their families and carers are most aware of are the new star ratings system, the wage increase for aged care workers and the requirement for a registered nurse in aged care homes 24/7.
They are less aware, however, of the work of the Aged Care Taskforce (which is reviewing funding arrangements to develop a fairer system), the Council of Elders (an advisory body that provides a voice from older Australians directly to government), and aged care providers that have specialised service offerings (like those that implement the Aged Care Diversity Framework initiative).
In response, the Department of Health and Aged Care said it will work harder to communicate more clearly on the reforms that do not seem to be sticking in the public’s minds, by developing new products and making more information available on the changes being made across the board.
The latest Consumer Pulse Survey received 629 responses between October and December 2023. It will now be carried out twice a year, with the next survey due to open in February 2024.
One year anniversary of Code of Conduct for Aged Care
The start of December 2023 marked 12 months since the Code of Conduct for Aged Care has been in place.
The Aged Care Quality and Safety Commission oversees compliance with the code, which sets out expected behaviours and the respective responsibilities of providers, workers and governing persons.
In recognition of the anniversary, the commission sent out a warning to aged care facilities to make sure that they have been checking the banning orders register before employing a worker or engaging volunteers.
Individuals are placed on the register of banning orders when they are found to have breached the Code or deemed unsuitable for aged care work. They may pose an immediate or severe risk to those in care, for example, or have been convicted of offences involving fraud or dishonesty.
Since coming into force, the department has issued banning orders to 81 people.
If you receive such an order, you can’t provide any type of aged care for a specific period or permanently. There are also significant consequences if you breach a banning order.
If a provider fails to check the banning orders register as part of their pre-employment screening process, they could arguably be in breach of their duty of care in the event the person who is hired was banned and is later involved in an incident where a resident is harmed.
New provider governance reforms now in place
New governance reforms for providers and their governing bodies came into effect on 1 December 2023.
Providers need to make sure that most of their governing body is made up of non-executive members, and at least one member has clinical care experience.
If a provider is unable to meet the new requirements, they can ask the Aged Care Quality and Safety Commission for a ‘determination’ that would mean they are exempt in the short-term from one or both of the requirements on their governing bodies. The Commission is quick to point out on its webpage that determinations do not remove any of the obligations under the Aged Care Act 1997.
The December 2023 enforcement date applies to aged care providers and home care package providers who were approved before 1 December 2022.
Providers who were approved after 1 December 2022 have already had to comply with the changes.
The new responsibilities do not apply to the Commonwealth Home Support Programme or the National Aboriginal and Torres Strait Islander Flexible Aged Care Program.
Aged Care Data and Digital Strategy is rolled out
Aged care workers are being asked to step up their understanding of technology and innovative products as part of the government’s Aged Care Data and Digital Strategy, which is set to launch in 2024.
The Department of Health and Aged Care has already published its draft Aged Care Data and Digital Strategy, providing information to aged care workers, assessors, health clinicians and the broader sector. The 48-page report details how the better use of data and digital technologies can improve the care of older people.
The government is acting to meet the challenges of a rapidly ageing population, and how that will impact an already stretched and understaffed workforce in the aged care sector. According to the report, by 2062 the number of people aged over 85 will triple, and the number of people aged over 65 is set to more than double.
It wants providers to take advantage of technology for more administrative tasks, allowing extra time for the direct care of residents. The strategy also aims to increase the digital capability of the workforce and empower older people so they can actively participate in their care with simplified, user-friendly experiences.
Star ratings and care minutes fall under public scrutiny
The Star Ratings system came under fire last month after reporters discovered that aged care homes failing to meet industry compliance standards were still being awarded four or five stars.
According to the reports, the minimum quality standards assessed by the Aged Care Quality and Safety Commission were not included in the star ratings system. Critics said the omission of data led to an inflation of star ratings that didn’t take into account the compliance failures, showing that the system was “a total waste of time” and “misleading” for consumers.
Star Ratings were introduced in December 2022, and the program aims to boost transparency in the sector and provide older Australians and their families with the right information for choosing residential aged care facilities.
The negative coverage came on the heels of other revelations in December that the government had been publishing incorrect care minute targets for over a year.
Since October 2023, providers have had to make sure that registered nurses, enrolled nurses (ENs) and personal care workers and assistants in nursing (PCW-AINs) log a certain minimum standard of time with each resident for quality and safety. Those care minutes then need to be included in the provider’s quarterly financial reports.
With care minute targets impacting staffing levels, providers have been urged to check their targets, which they should be calculating themselves, and let the government know if they suspect any discrepancies.
Attwood Marshall Lawyers – helping people at every stage of life
At Attwood Marshall Lawyers, we understand that making decisions about aged care can be overwhelming and emotionally challenging. That’s why we have a dedicated team of elder law specialists who are not only highly skilled but also deeply compassionate. They have a comprehensive understanding of the aged care sector and are committed to helping people make informed choices that align with their needs and preferences.
We are passionate about the aged care sector and continue to monitor the industry changes that will impact aged care providers as well as residents and care recipients.
There are several financial and legal factors that need to be considered when an individual transitions to aged care, including reviewing service agreements and the individual’s estate plan. We are committed to providing our clients with personalized attention and support throughout this process, ensuring that their rights and interests are always protected.
If anyone needs legal advice about transitioning to aged care or estate planning, we are here to help. Please contact our Aged Care and Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
