The House of Representatives proposed no further amendments, agreeing to those amendments passed in the Senate last week. The newly established Aged Care Transition Taskforce will work with the sector to ensure a smooth transition to the new Act.

To support the commencement of the new Act, the Aged Care (Consequential and Transitional Provisions) Bill 2024 (Transitional Bill) was also introduced into Parliament. The Transitional Bill is designed to facilitate the transition from the existing aged care legislative framework to the new Act. The Transitional Bill will repeal the existing Aged Care Act 1997 (old Act), Aged Care Quality and Safety Commission Act 2018 (Commission Act), and the Aged Care (Transitional Provisions) Act 1997, replacing them with the new Act.

The Transitional Bill has been designed to ensure continuity of care for aged care recipients throughout the transition period. The Transitional Bill will also facilitate the shift of current approved providers to the new regulatory framework where they will be known as 'registered providers', and deals with the transfer of programs previously outside the scope of existing legislation such as the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program and the Commonwealth Home Support Programme (CHSP). We provide a summary of the key changes below:

• Continuity of approved provider status: Approved providers under the current scheme will be taken to be registered as a registered provider under the new Act. However, this will not occur where the System Governor determines that an approved provider is an inactive provider, meaning they have not claimed a subsidy for a significant period of time.

Registration period: A registered provider's registration period will be between 3 months, and 3 years and 3 months, as determined by the System Governor. This ensures that registration periods are time limited with regular reviews, addressing concerns arising from the Royal Commission regarding the lack of a requirement for providers to undergo reassessment of their suitability at any point.

Pending applications: Any applications for approved provider status that have not been decided on before the transition time are taken to be an application under the new Act, meaning the application will be processed according to the new legislative framework.

CHSP and NATSIFAC providers: The System Governor may determine, in writing, that an entity is taken to be a registered provider. It is intended that this mechanism will be used to deem providers of CHSP and NATSIFAC to become registered providers under the new Act, given they did not need to be approved providers under the old Act.

• Removal of aged-care-specific freedom of information exemptions: To implement Recommendation 88 from the Royal Commission, the Transitional Bill repeals the exemption that previously existed under the Freedom of Information Act 1982 (Cth) that barred access to information governed by the old Act and the Commission Act. This means that a person will have a legally enforceable right of access to a document of an agency or an official document of a Minister under the old Act and Commission Act.
• Obligations relating to reporting, notifications and information: Any requirements or notices to give documents or information will continue to be effective and must be complied with. Additionally, where the period for giving a notification (for example, in relation to a change of circumstances or events relating to key personnel) had not ended before the transition time and the required notification had not been given, the obligation to do so remains on foot and must be complied with.
• Sanctions: Sanctions imposed on approved providers under the old Act will transfer to the registered provider status under the new Act and will continue to apply. Banning orders in force will continue to operate.
• Retention of records: To ease administrative burdens on registered providers, records created before the transition time are permitted to be kept in accordance with the law applicable at the time they were created.
• Minister's power to make transitional rules: Recognising that the Transitional Bill may not 'cover the field' or respond to all providers individual circumstances, the Minister may make additional rules. The rules would be in the form of a legislative instrument dealing with matters affecting large cohorts of people and providers, to ensure a functional transition for all.

We will continue to work with the sector to ensure providers have a smooth transition and are compliant with their obligations under the new Act. If you have any questions, or would like to discuss this update, we would be more than happy to assist.