Digital platform providers are unique because they do not operate like traditional providers in that they often only connect people seeking aged care services with providers, rather than delivering services themselves, which requires specific regulation.
Following increased scrutiny of these digital platform providers in response to the Royal Commission into Aged Care Quality and Safety (Royal Commission), the Bill aims to ensure representations about aged care service providers on platforms are accurate, workers are qualified, and care is of a high quality by imposing duties on all operators. Additional duties are imposed on operators that are corporations (Corporation Operators).
Who owes the duties?
The new duties are owed by operators of ‘aged care digital platforms’. An aged care digital platform is a digital platform that is operated to facilitate the delivery Commonwealth funded aged care services, irrespective of whether they are government-subsidised or self-funded.
In addition, the duties only apply if:
- the operator of the digital platform connects people seeking aged care services and providers of those services; and
- the operator or its associated entity (or their contractors) handles the processing of payments which relate to the connection between aged care service providers and recipients (for example, payments from the recipient to the provider).
This means that the platform not only connects entities seeking aged care services with providers but also manages the financial aspects of these services, such as processing fees for the facilitation of these services.
The Aged Care Rules (Rules), which are yet to be released in full, may provide that specific platforms are excluded from being classified as aged care digital platforms by either naming the platform or by including it in a specified class or classes. The Rules can also prescribe a platform in respect of all services, or in respect of specified aged care services.
Duties of all operators
Where a digital platform operator makes representations that the advertised entity can deliver a Commonwealth funded aged care service, the operator must check and display certain information on the digital platform, including:
- whether the advertised entity is a registered provider;
- if applicable, the registered provider’s registration categories; and
- whether a banning order (including an NDIS banning order) against the advertised entity is, or has been, in force.
Operators that do not comply will be liable to a maximum civil penalty of 500 penalty units (currently $80,650).
Duties of Corporation Operators
Corporation Operators of aged care digital platforms have additional obligations. A Corporation Operator must:
- notify the Commissioner of the Aged Care Quality and Safety Commission that it operates the platform;
- implement a complaints management system and manage complaints;
- implement an incidents management system and manage incidents;
- display a summary and explanation of those systems on the platform;
- prominently display the Statement of Rights on the platform;
- report to the Commissioner, the System Governor, the Complaints Commissioner or the Inspector-General of Aged Care, any information prescribed by the Rules to be reported; and
- keep, retain and disclose records or information as prescribed by the Rules.
The Rules may prescribe further requirements
The obligations relating to establishing and managing complaints and incidents systems mirror obligations of registered providers, ensuring digital platforms are held accountable for the safety and wellbeing of its users, promoting a higher standard of care and transparency. Corporation Operators that do not comply with the duties will be liable to a maximum civil penalty of 250 penalty units (currently $40,325).
Senate debates
The Senate’s Second Reading Debates indicated the intention for digital platforms to be held to the same standard as registered providers, including requiring compliance with the strengthened Aged Care Quality Standards and Code of Conduct, requiring ongoing audits or compliance monitoring and to comply with the Serious Incident Response Scheme.
Support was also expressed for the preferencing of direct employment of workers (through traditional service providers) rather than contractors through intermediaries (such as through digital platforms).
Finally, Senator Van proposed a second reading amendment which would close the regulatory gap between registered providers and digital platforms, imposing the regulations of registered providers on digital platforms.
Impact on providers
The proposed Senate amendments ultimately did not pass, and the Bill passed both houses of Parliament on 25 November 2024 with the digital platform operator sections unamended. Nevertheless, it is important to note these concerns given the prospect of more stringent obligations being imposed by the pending Rules.
Current providers who are operators of aged care digital platforms should ensure appropriate systems and procedures are in place to check advertised entities’ registration statuses and whether any banning orders have been or are imposed. Corporations Operators will need to ensure that they display the required information on their digital platforms, implement complaints and incidents systems and ensure they are aware of all reporting and record keeping obligations.
