Attwood Marshall Lawyers Accredited Aged Care Professionals and Wills and Estates Senior Associate Debbie Sage and Wills and Estates Associate Larisa Kapur discuss the latest news and developments that are impacting the aged care sector.
Overview
The past few months have seen a review into the Aged Care Quality and Safety Commission uncover significant failings at the regulator, a consultation on new wide-reaching legislation, promising statistics on the compliance of the new requirement for all aged care homes to have a registered nurse onsite 24/7, and more debate about how to make the funding of the aged care sector more sustainable.
Review into aged care regulator finds failings
There are some “critical capability gaps” at the Aged Care Quality and Safety Commission that “require urgent attention,” according to an independent review published by the government in July.
The regulator is short-staffed, has a problematic leadership structure, is exposed to several high to extreme cyber risks, and has a poor complaint handling process.
The commission was launched in 2018 and its workforce has grown from 400 to 1,400 since 2019, according to the report. Still, its staff vacancy rate sits at 20 per cent, with quality assessments regularly outsourced to third-party providers, according to the review.
The Department of Health and Aged Care commissioned David Tune to carry out the review in October 2022. He was the former secretary of the Department of Finance and Deregulation and served as chair for the former Aged Care Sector Committee between 2015 and 2021.
In response to Mr Tune’s findings, the Health Department said that funding in the 2023-24 budget should address the urgent matters raised, including $1.3 million to support the implementation of the report’s recommendations and $19.8 million to cover future assessors.
Consultation opens on new Aged Care Act
The government has launched a consultation on the new Aged Care Act, centred on the rights and needs of older citizens.
The consultation asks for feedback on how the Act should be structured, what should be included in a proposed Statement of Rights and a Statement of Principles, and how high-quality care should be legally defined. It is also expected to introduce better protections for whistle-blowers and a new process for making disclosures.
In addition, a new statutory duty on registered aged care providers is under consideration, which would require providers to ensure their actions do not adversely affect the health and safety of their residents. There could be criminal penalties for serious breaches that result in chronic illness, injury or death, with compensation made available to victims and their families.
The government is asking for feedback on whether additional duties should also be put on aged care workers and organisations.
The Health Department hosted a webinar on 10 August 2023 for older people, their families and the aged care sector, looking at the proposed changes in greater detail. It has published the presentation slides here.
Registered nurse numbers improving
The government is close to reaching its goal of having a registered nurse on duty 24/7 at all residential aged care homes, despite a rocky lead-up to the requirement kicking in. The 1 July 2023 deadline for meeting the requirement coincided with an increase in mandatory care minutes and several aged care homes closing amid a severe staffing shortage in the sector.
Minister for Aged Care Anika Wells announced on 10 August 2023 that registered nurses are now on-site in aged care homes 98% of the time, on average. 86% of facilities now have a nurse on-site 24/7 and most the remaining homes are very close to meeting compliance.
The government also released a 24/7 registered nurse dashboard, so that interested individuals can monitor the data being reported from all aged care homes across the country.
The Health Department recently disclosed to industry news website ‘The Weekly Source’ that 125 aged care homes were eligible to be exempt from the 24/7 RN requirement and that there had been 53 applications for exemption. The 86% statistic did not count the exempt homes, according to The Weekly Source.
Funding options – superannuation debate heats up
The aged care funding debate has reared its head again, with the industry body Aged and Community Care Providers Association’’ calling for better use of superannuation to solve the growing cost of aged care.
The Association said that individuals with the means should have a portion of their superannuation funds “ring fenced” from the rest of their accounts to pay for their aged care arrangements later in life. Ring fencing the money guarantees that it will not be used for any other purpose.
It is urging the government to consider a range of measures, including a “compulsory saving approach,” and has acknowledged that any solution will be complex and require legislative changes. The proposals have been met with mixed responses, with deputy opposition leader Sussan Ley saying Australians already have a mistrust of the government’s handling of super.
Meanwhile, the Assistant Treasurer Stephen Jones told ABC News that a conversation on superannuation and how it could help the aged care funding crisis needs to be had. He said it struck him as “odd” that the super system is designed for retirement income and yet currently a third of funds being paid out are for inheritance bequests.
The Health Department has established a taskforce to review funding arrangements and consider how aged care can be more sustainable. The Aged Care Taskforce recently launched a consultation asking for the public’s views on the core principles that it would be bound by. Responses need to be submitted by 31 August 2023.
Ideas that have been floated in the media include introducing a levy or “user pays” model as recommended by the Royal Commission.
The government is also drafting an objective for the superannuation system. Once formulated, the objective will be built into legislation.
Aged care residents paying daily accommodation rates facing huge increase
Individuals that pay for their accommodation in aged care on a daily rate are paying 50 per cent more on interest compared to a year ago.
The calculation of the market price for rooms is based on the Maximum Permissible Interest Rate, or MPIR, which hit 7.9 per cent on 1 July 2023, up from 5 per cent at the same time last year. The rate is fixed when the individual first moves in.
The MPIR has been trending upwards since it dropped to a low of 4.01 per cent in December 2021. It was last creeping towards the 8 per cent mark in December 2012 when it reached 7.62 per cent.
Residents can choose between paying a refundable accommodation deposit (RAD), a daily accommodation payment (DAP), or a combination of both. Experts believe that the higher rates will lead to more new residents choosing the RAD option.
The Australian Financial Review has calculated that the impact of the latest rate rise means that the daily rate on a room with a $550,000 RAD has increased from $75.34 a day to $119.04 a day, or $15,950 a year.
Upcoming Voice Referendum
The Australian government has sent out a reminder to aged care workers and managers, urging them to help their residents check their enrolment details with the Australian Electoral Commission.
The Commission is overseeing the 2023 referendum on proposed changes to the Constitution, with all Australian citizens being asked to vote “Yes” or “No” on the creation of an Aboriginal and Torres Strat Islander “Voice”.
Any resident that has lived in an aged care facility for more than one month as a permanent resident should have updated their address with the AEC via this website.
From August 2023, the Commission will be reaching out to residential aged care providers to discuss tips and provide information on how staff members can help their residents leading up to the vote.
If a resident is no longer capable of voting and has a medical certificate from a registered practitioner showing that they are of unsound mind and do not have the capacity to understand the nature and significance of voting, an objection claim needs to be submitted to the AEC on their behalf.
Attwood Marshall Lawyers – helping people at every stage of life
We have a dedicated team of lawyers who practice in elder law and have a thorough understanding of the aged care sector. Attwood Marshall Lawyers is one of the few firms that have not one, but two Accredited Aged Care Professionals dedicated to helping people navigate the complex aged care industry and the various care options available.
We are passionate about the aged care sector and continue to monitor the changes rolling out impacting both aged care providers and 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.
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.
