On 12 September 2024, the Prime Minister Anthony Albanese and the Hon. Anika Wells MP introduced the new Aged Care Bill 2024 (Bill) into the House of Representatives. The new Bill stands as the focal point of continuous legislative reform in response to the recommendations from the Royal Commission into Aged Care Quality and Safety and the Aged Care Taskforce.
The Bill aims to implement systemic reform to improve the sustainability of the aged care sector and the quality of aged care services and follows extensive public consultation on the Exposure Draft to the Bill late in 2023.
In this update, we provide an overview of the Bill and some of the impacts it may have on providers.
Statutory duties
The Bill establishes two new statutory duties:
- Registered provider’s duty to ensure their conduct does not cause adverse effects to health and safety of individuals.
- Duty for ‘responsible persons’ to exercise due diligence to ensure the provider complies with the Provider’s duty (responsible persons duty).
The Bill has reduced the scope of 'responsible persons’ caught by the responsible persons duty, exempting those persons responsible for the ‘day-to-day operations of the registered provider’. Following significant concern from stakeholders, the statutory duties are no longer strict liability offences and criminal sanctions have been removed from the Bill, in favour of civil penalties and a new compensatory pathway. The Bill also introduces a reversal of burden of proof for statutory duties, meaning the prosecution now bears the burden to prove the conduct was a breach of the duties.
Statement of rights
The Bill introduces a positive obligation on providers to uphold the Statement of Rights, meaning providers must actively ensure they uphold the rights of older people when delivering funded services. A provider’s actions will be assessed against the Statement of Rights, including compliance as a condition of registration.
Funding reforms
The Bill introduces funding reforms so that those with the means to contribute will make increased contribution(s) to the cost of their aged care. These changes include a larger means-tested contribution from new entrants, a higher maximum room price that is indexed over time and the retention of a small portion of Refundable Accommodation Deposits (RAD) by the provider (i.e., two percent of a person’s RAD every year for five years). For Support at Home, the Government will pay all costs associated with clinical care services, with individual contributions going towards independence and everyday living costs.
Additionally, the Government will consider phasing out RADs by 2035, dependent on the sector’s financial state and access to capital.
Provider registration
The new regulatory model which will be introduced with the Bill creates universal provider registration which will operate as a single registration for each provider across all service groups. Even if a provider delivers multiple service groups (such as home support and residential care), they will only need to register once under the new model. This will reduce the unnecessary administrative burden related to the current accreditation process, whilst also improving oversight by the Aged Care Quality and Safety Commission.
There will be six registration categories that group service types based on similar care complexity and risk, meaning provider obligations and regulatory oversight will be linked to these categories and be proportionate to the service types being offered.
Supported decision-making
The ‘representative’ role initially proposed in the Exposure Draft has been amalgamated into two distinct ‘supporter’ and ‘decision-making supporter’ roles. The Bill amends the supported decision-making proposals introduced in the Exposure Draft so that Guardians (or similar) appointed under State and Territory laws do not also have to be appointed as a decision-making supporter of an individual under the Bill. These amendments were made following public scrutiny during the Exposure Draft consultation period.
The Bill also responds to commonly occurring emergency circumstances in aged care settings, such as where an older person who might not yet have a formally designated decision-maker needs prompt access to aged care services. In such cases, a temporary decision-making supporter may be appointed by the Secretary of the Department to ensure the individual accesses critical care and services they require.
Other key changes to the Bill
- An independent Complaints Commissioner will sit within the Aged Care Quality and Safety Commission, allowing for a degree of separation whilst integrating complaints and compliance functions within a single overarching agency.
- The Quality Care Worker Voice Body will be removed from the Bill, following last minute bipartisan consensus.
- The introduction of eight new ‘Support at Home’ classifications, including a Level 5 package recommend in the Tune Report
- A ‘residential care home’ can include a place within a retirement village if it is the place of residence of individuals who have a continuing need for aged care services and is fitted, furnished and staffed for providing aged care services, however, the entire retirement village cannot be classified as a residential care home.
- Introduction of new Higher Everyday Living Fee, replacing the previous Additional Service Fee and Extra Service Fee arrangements with caps on what fees can be charged.